Sottilaro v. Figueroa

• Decision Date: 19 April 2012
• Docket Number: No. 2D11–1278.,2D11–1278.
• Citation: 86 So.3d 505
• Parties: Denise SOTTILARO and Phillip Sottilaro, Appellants, v. Maricela FIGUEROA, as Personal Representative of the Estate of Christopher Cepeda, Deceased, Appellee.
• Court: Florida District Court of Appeals

86 So.3d 505

Denise SOTTILARO and Phillip Sottilaro, Appellants,

v.Maricela FIGUEROA, as Personal Representative of the Estate of Christopher Cepeda, Deceased, Appellee.

No. 2D11–1278.

District Court of Appeal of Florida, Second District.

Feb. 8, 2012.

Rehearing Denied April 19, 2012.

Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler P.A., St. Petersburg for Appellants.

John W. Frost, II, and Krista Kendrick of Frost Van Den Boom & Smith, P.A., Bartow, for Appellee.

BLACK, Judge.

Denise and Phillip Sottilaro, defendants below in this wrongful death action, appeal the final judgment entered in favor of Maricela Figueroa, as the personal representative of the Estate of Christopher Cepeda. This case arose after Ms. Sottilaro hit fourteen-year-old pedestrian Christopher Cepeda with her motor vehicle, causing his death. Following trial, the jury returned a verdict finding Denise Sottilaro seventy percent comparatively negligent and Christopher Cepeda thirty percent at fault. It awarded the Estate $50,733.59 for past medical bills and $1.325 million for pain and suffering. Based on the seventy percent comparative negligence finding, the final judgment entered in favor of the Estate was $35,513.51 for past medical bills and $927,500 for pain and suffering. The Sottilaros raise several issues on appeal, the most significant of which is the trial court's erroneous interpretation of the accident report privilege which led to the exclusion of impeachment evidence for key witnesses. Because the trial court incorrectly concluded that the accident report privilege is applicable to statements made by uninvolved witnesses as a matter of law, we reverse and remand for a new trial. As a result, we also reverse the trial court's award of costs based on the Estate's status as the prevailing party. The other issues raised on appeal are moot due to our remand for a new trial.

I. BACKGROUND FACTS

On September 21, 2008, Mr. Cepeda and four of his friends spent the day playing basketball. When it started to get dark, they began walking back home. Along the way, the group had to cross U.S. 27, a major, four-lane highway with a wide, grassy median and a posted speed limit of sixty-five miles per hour. After Mr. Cepeda and his friends crossed the two northbound lanes, they regrouped in the median and prepared to cross the two southbound lanes. At the same time, Ms. Sottilaro was driving southbound along the highway. She testified that she was travelling at approximately sixty to sixty-five miles per hour in the right lane, but when she saw a vehicle preparing to turn ahead of her, she moved to the left lane. She stated that as she changed lanes, she suddenly saw Mr. Cepeda appear in front of her car and that he was turned at an angle where his back was to her. Although Ms. Sottilaro hit her brakes, she also immediately hit Mr. Cepeda. He later died from his injuries.

Approximately an hour after the accident, several of Mr. Cepeda's friends provided sworn testimony to a deputy sheriff about the events surrounding the accident. They stated that Mr. Cepeda was looking down at his phone and texting while crossing the highway. The deputy included these statements in his traffic fatality investigation report.

During pretrial, the parties extensively argued whether or not defense counsel could admit the traffic fatality investigation report. Defense counsel indicated that he might use the report to refresh the investigating officer's recollection or for impeachment of witnesses. The court ultimately concluded that it would not speculate on the purpose for which defense counsel wanted to use the report and that it would make a decision on the admission of the report when defense counsel raised the issue during the trial.

At trial, only one of the witnesses who provided a sworn statement to the deputy testified in person. Prior to cross-examination of that witness, defense counsel requested a sidebar to discuss whether or not he could use the report for impeachment. The trial court concluded that this court's decision in Williams v. Scott, 153 So.2d 18 (Fla. 2d DCA 1963), was controlling and that “since [defense counsel was] asking for guidance from the court as to whether [he could] ask—impeach [the witness] from ... the traffic report[, the court was] going to have to say no, you cannot.” The witness then testified on cross-examination that he did not know whether Mr. Cepeda was texting or not. The Estate's counsel provided the other witnesses' testimony by way of deposition, and consistent with the court's previous ruling on the accident report privilege, the portions of the deposition testimony where the Sottilaros' counsel impeached the witnesses with their prior statements to the deputy were redacted.

After trial, the Sottilaros filed a motion for new trial. During the hearing on the motion, the court reiterated its reliance on Williams, stating, “I think if it weren't for the Second District Court of Appeal case law that was cited to me, I probably would have agreed with you during the trial and allowed those statements of those witnesses to come in as prior inconsistent statements from what they testified during trial.”

II. ANALYSIS

Typically, a trial court's ruling on the admissibility of evidence is subject to an abuse of discretion standard of review. Pantoja v. State, 59 So.3d 1092, 1095 (Fla.2011). “However, a court's discretion is limited by the evidence code and applicable case law. A court's erroneous interpretation of these authorities is subject to de novo review.” Id. (quoting McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006)). Here, the trial court's ruling on the accident report privilege was an incorrect interpretation of the law.

Section 316.066(5), Florida Statutes (2010)¹, provides:

Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person's privilege against self-incrimination is not violated.

The purpose of the statutory privilege is to “ensure that the state does not violate an individual's constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident.” State v. Cino, 931 So.2d 164, 168 (Fla. 5th DCA 2006); see also State v. Norstrom, 613 So.2d 437, 440 (Fla.1993) (stating that the purpose of the privilege is “to ensure that accident information could be compelled without Fifth Amendment violations”).

However, the statutes requiring an accident report and the case law interpreting those statutes demonstrate that the privilege only applies to a driver, owner, or occupant of a vehicle because those are the only people compelled to make a report under the statutes. See§ 316.066(1) (requiring a driver to make a report when involved in a crash where there is bodily injury, death, or damage to a vehicle); § 316.062(1) (requiring a driver to give his or her information to a police officer upon request when a crash results in injury or death); § 316.064(2) (requiring the occupant of a vehicle to make a report under sections 316.065 and .066 when the driver is physically incapable of making a report); § 316.064(3) (requiring the owner of a vehicle to make a report under chapter 316 when the driver is physically incapable); § 316.065(1) (requiring the driver of a vehicle involved in a crash resulting in injury or death to report the accident to the police); see also Brackin v. Boles, 452 So.2d 540, 544 (Fla.1984) (“We clearly and emphatically hold that the purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2).”); S.G.K. v. State, 657 So.2d 1246, 1247–48 (Fla. 1st DCA 1995) (concluding that section 316.066(3)(a) does not require “ witnesses to the accident to stay at the scene or report to investigating officers” (citing §§ 316.061, 316.062, 316.066(3)(a), Fla. Stat. (1993))); Cino, 931 So.2d at 167–68 (finding the accident report privilege statutedid not bar an investigating officer from testifying regarding statements made to him by anyone other than the defendant “because doing so would in no way violate the non[ ]defendant declarant's privilege against self-incrimination”).

The Fourth District's decision in McTevia v. Schrag, 446 So.2d 1183 (Fla. 4th DCA 1984), also supports the proposition that the privilege only applies to the driver, owner, or occupant of the vehicle. Id. at 1184 (concluding “[the] privilege inures only to those required to make the report.” (citing State v. Coffey, 212 So.2d 632, 634 (Fla.1968), receded from on other grounds by, Brackin, 452 So.2d at 542;State v. Edge, 397 So.2d 939, 942 (Fla. 5th DCA 1981); and Lobree v. Caporossi, 139 So.2d 510, 512–13 (Fla. 2d DCA 1962))).

The Estate argues that the accident report privilege applies to the witnesses in this case because they were “involved in the crash” as required by section 316.066(5). It also argues that the cases relied upon by the Fourth District in McTevia are inapposite to this case. While we agree that the cases cited in McTevia are factually distinguishable from this case, the McTevia case itself is factually similar to this case and the Fourth District's reasoning, along with the reasoning of the cases cited, is more applicable.

In McTevia, Mr. and Mrs. McTevia were plaintiffs in the trial court,...