State Farm Mut. Auto. Ins. Co. v. Smith, 89-715

• Decision Date: 12 July 1990
• Docket Number: No. 89-715,89-715
• Parties: 15 Fla. L. Weekly D1813 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Michaelyn SMITH, etc., Appellee.
• Court: Florida District Court of Appeals

Page 751

565 So.2d 751

15 Fla. L. Weekly D1813

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Michaelyn SMITH, etc., Appellee.

No. 89-715.

District Court of Appeal of Florida Fifth District.

July 12, 1990.

Rehearing Denied Aug. 28, 1990.

Thomas G. Kane of Kane, Williams & Singer, P.A., Rockledge, for appellant.

Glen R. Goldsmith of High, Stack, Lazenby, Palahach & Goldsmith, Coral Gables, for appellee.

PER CURIAM.

This is the appeal of a final judgment involving an underinsured motorist claim that arose out of an intersectional collision where the underinsured motorist's vehicle pulled out in front of the appellee's vehicle, resulting in impact. Appellee was not wearing her seat belt. Appellee described the impact as being "quite severe" and acknowledges she was "thrown around". Appellee's head struck the windshield with enough force to damage the windshield, and she sustained injuries to her face, head, neck, ankle and low back. Her physician testified that the cause of the herniated disc in her lower back was a "single severe trauma" which, in his opinion, was sustained in the automobile accident. Among its defenses appellant raised the seat belt defense.

The plaintiff moved in limine to exclude the seat belt defense arguing that, because she had waived any claim to damages for the face, head, neck and ankle (none of which had resulted in permanent injury) and was seeking compensation only for the herniated disc in her lower back, the seat belt defense was unavailable in the absence of competent expert testimony that appellee's failure to wear her seat belt contributed to the herniated disc. Appellee had successfully obtained an order excluding the appellant's accident reconstruction expert from the trial based on the expert's failure to make himself available for deposition a reasonable time before trial. ¹

Appellant contended, relying on Burns v. Smith, 476 So.2d 278 (Fla. 2d DCA 1985), that expert testimony was not required to establish the plaintiff's back injury was caused by or exacerbated by the failure to wear her seat belt. In Burns, a jury had found 75% comparative negligence against the plaintiff, who was thrown around in the vehicle as the result of failure to wear his seat belt and sustained head and neck injuries. The Burns court held that, under the facts of that case, it was within the province of the jury to determine whether the plaintiff's failure to wear his seat belt had produced or contributed substantially to his injuries. ² In the present case, the trial court granted the motion in limine and excluded all evidence and argument concerning the seat belt defense.

The question whether expert testimony is a prerequisite to availability of the seat belt defense has been the subject of some debate. ³ It is obvious that the specific dynamics of seat belts in various automobile collision scenarios is not a matter within the common understanding of juries or, for that matter, judges. On the other hand, the Burns case implies that the jury's common sense may be enough where the evidence establishes that the injury complained of is an impact injury.

Another troublesome aspect of the requirement of expert testimony is illustrated by this case. At the point in the trial where the testimony of the accident reconstruction expert was proffered, plaintiff's counsel argued that such testimony would be incompetent because the accident reconstruction expert had no medical training, and thus could not testify concerning causation of a herniated disc. Plaintiff's counsel also contended that the physician who performed an independent medical examination on the plaintiff could not testify about whether the use of a seat belt could have avoided or minimized the plaintiff's back injury because he had no understanding of the operation of seat belts. This raises questions concerning which experts are truly competent in this field to advise the jury, and upon what issues. ⁴

The Supreme Court of Florida's decision establishing the seat belt defense is Insurance Co. of North America v. Pasakarnis, 451 So.2d 447 (Fla.1984). The facts in that case, unlike the instant one, were tailor-made for argument in support of the seat belt doctrine. The plaintiff, Pasakarnis, was driving a jeep without having fastened his operational seat belt. Without any contributory (i.e., causative) negligence on his part, he was struck broadside by the defendant's vehicle, which had run a stop sign. Pasakarnis was thrown from the jeep and landed on his posterior, resulting in a compression-type injury to his lower back. His treating physician testified that his injury was caused by his flying through the air and impacting on the pavement. The defense pled the failure of Pasakarnis to wear his seat belt as an affirmative defense. The trial court struck this defense and precluded expert testimony in regard to it. At trial, the defense unsuccessfully proffered the deposition testimony of an engineer-accident analyst who stated that had Pasakarnis properly utilized his seat belt, it would have restrained him in the seat and he would not have been ejected. ⁵ The engineer also opined that had Pasakarnis been restrained within the jeep by the seat belt, the probability was that he would have escaped all injury.

Upon ultimate review, the Florida Supreme Court stated:

Nonuse of the seat belt may or may not amount to a failure to use reasonable care on the part of the plaintiff. Whether it does depends on the particular circumstances of the case. Defendant has the burden of pleading and proving that the plaintiff did not use an available and operational seat belt, that the plaintiff's failure to use the seat belt was unreasonable under the circumstances, and that there was a causal relationship between the injuries sustained by the plaintiff and plaintiff's failure to buckle up. If there is competent evidence to prove that the failure to use an available and operational seat belt produced or contributed substantially to producing at least a portion of plaintiff's damages, then the jury should be permitted to consider this factor, along with all other facts in evidence, in deciding whether the damages for which defendant may otherwise be liable should be reduced.

The problems inherent in applying Pasakarnis to various factual situations are manifold. The difficult case is the one presented by the instant facts. The plaintiff, who was not wearing her seat belt, was thrown about inside the car as a result of the collision, and the injury claimed was to the low back, an injury not obviously resulting from direct contact with the windshield, the door, the dashboard, or (as in Pasakarnis ) the pavement. The distinction appellee makes between the head and neck injuries in Burns and the low back injury in the present case is not persuasive. It is no more obvious that a neck injury is attributable to the failure to wear a seat belt than a low back injury. Moreover, review of the literature on this subject indicates the windshield, door or dashboard impact injuries, which as laymen we have come to believe are avoided by the use of seat belts, are not necessarily prevented when a seat belt is worn. Here plaintiff's injuries may have resulted from the initial impact or from a secondary impact resulting from the absence of a seat belt--or, in part, from both. Candidly, our concern is that in a case like the one presented here no one, expert or layman, can truly apportion causation and degree of injury between...