Wakjer v. Bozeman
| Citation | 243 F.Supp.2d 1298 |
| Decision Date | 11 February 2003 |
| Docket Number | Case No. 4:01cv134-RH. |
| Parties | Lindsey Neal WALKER, as personal representative of the Estate of Christopher Seth Walker, deceased, for the benefit of the Estate and survivors Lindsey Neal Walker and Diane Gail Walker, Plaintiff, v. Johnny Edward BOZEMAN and Bozeman Construction Company, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Thomas K. Equels, Holtzman, Equels & Furia, Orlando, FL, Walter Umphrey, Paul F. Ferguson, James E. Payne, Provost & Umphrey, LLP. Gregory F. Cox, Esq., Provost Umphrey, LLC, Beaumont, TX, Judson Howard Orrick, Esq., Holtzman Equels, Tallahassee, FL, for Plaintiffs.
Theodore W. Small, Jr., Holland & Knight, Orlando, FL, J. Karl Viehman, Suzanne J. Hero, Hartline, Dacus, Dreyer, Etc., Dallas, TX, Merideth Cornelia Nagel, Esq., Holland & Knight, Tallahassee, FL, Charles Vincent Peppier, Esq., County Attorney Office, Pensacola, FL, Brian Stephen Duffy, Esq., Brandice Davidson Dickson, Esq., McConnaughhay, Duffy, Coonrad, Etc., Michael E. Ingram, Esq., Ingram & Keri, PA, Brian C. Keri, Esq., Brian C. Keri, PA, John Allan Rudolph, Jr., Esq., John A. Rudolph Jr., PA, John Craig Knox, Esq., Andrews, Crabtree, Knox, Etc., Tallahassee, FL, for Defendants.
ORDER ON POST-TRIAL MOTIONS
The plaintiff in this wrongful death action settled with four defendants, voluntarily dismissed another, and went to trial against another. The verdict was for the plaintiff for substantially less than an offer of judgment that had been made under Florida law by the defendant who went to trial. Judgment was entered on the verdict. The defendant who went to trial has moved for a setoff based on the proceeds of plaintiffs settlement with other defendants and has moved for attorney's fees and costs based on the offer of judgment. The defendant against whom all claims were voluntarily dismissed also has moved for attorney's fees and costs based on its own offer of judgment. Inexplicably, plaintiff has moved to increase the judgment against the defendant who went to trial to the amount for which plaintiff settled with another defendant, and, if the judgment is so increased, plaintiff seeks an award of attorney's fees and costs based on its own demand for judgment. Plaintiff also seeks to recover taxable costs as the prevailing party.
I deny the motion for setoff of settlement amounts because no such setoff is available under Florida law with respect to non-economic damages, which are apportioned among, rather than awarded jointly and severally against, joint tortfeasors. I grant defendants' motions for attorney's fees and costs based on the offers of judgment but note that, in accordance with the prevailing Florida law on this issue, those fees and costs will be assessed only against the plaintiff (the personal representative of the estate) and not against the survivors for whose benefit the verdict was returned. I deny plaintiffs motion to alter or amend (that is, to increase the amount of) the judgment. I deny plaintiffs request for costs as the prevailing party, based on defendant's offer of judgment and resulting entitlement to attorney's fees exceeding the amount of taxable costs. I grant a separate consented motion to amend the judgment to correct a technical error.
This action arose from the death of Christopher Seth Walker, age 17. He was the front seat passenger in a one-vehicle wreck. He was survived by his father, Lindsey Neal Walker, and his mother, Diane Gail Walker.
The case style of the original complaint listed the plaintiffs as "Estate of Christopher Seth Walker, Lindsey Neal Walker, individually and as personal representative of the estate of Christopher Seth Walker, and Diane Gail Walker." (Document 1, some capitalization omitted.) In the body of the initial complaint, the plaintiffs were listed as Lindsey Neal Walker, individually and as personal representative of the estate of Christopher Seth Walker, and Diane Gail Walker. (Id.) The case style of the final version of the complaint—the third amended complaint—listed the plaintiff as "Estate of Christopher Seth Walker." (Document 263, some capitalization omitted.) In the body of the third amended complaint, the plaintiff was identified as Lindsey Neal Walker, personal representative of the estate. Lindsey Neal Walker and Diane Gail Walker were identified as survivors. (Id.)
Under Florida law, the plaintiff in a wrongful death action is properly the personal representative, on behalf of the estate and survivors. See § 768.20, Fla. Stat. (2000).1 No issue was made of the manner in which the plaintiff was identified in the third amended complaint. In substance, the action was prosecuted by the personal representative (Lindsey Neal Walker), on behalf of the estate and survivors as required by applicable law. I treat the plaintiff as Lindsey Neal Walker, personal representative of the estate of Christopher Seth Walker, on behalf of the estate and survivors. References in this order to "plaintiff are to Linsdsey Neal Walker in this capacity. The only survivors were Lindsey Neal Walker and Diane Gail Walker, who were divorced.
Plaintiff initially named six defendants in this action: the driver Jerry Edward Bozeman; the driver's father Johnny Edward Bozeman (in whose name the vehicle was titled); a corporation wholly owned by the father (Bozeman Construction Company, Inc.); the vehicle's manufacturer General Motors Corporation; and two firms lower in the chain of distribution of the vehicle, Langdale Chevrolet, Inc. and Robert Hutson Ford, Inc. General Motors, Langdale and Hutson are collectively referred to in this order as the General Motors defendants.
Plaintiffs theories of recovery included the following. Plaintiff asserted that the son (Jerry Edward Bozeman) negligently drove the vehicle, causing the wreck. Nobody seriously disputed this. He was under the influence of drugs and alcohol and drove the vehicle off the road and into various obstructions, finally including a tree.
Plaintiff asserted that the father (Johnny Edward Bozeman) was liable on three distinct theories: first, that the son was driving the vehicle with the father's express or implied consent, rendering the father vicariously liable as the vehicle's owner, based on Florida's dangerous instrumentalities doctrine; second, that the father negligently entrusted the vehicle to the son; and third, that even if the son was not driving the vehicle with the father's consent, the father negligently allowed the son access to the vehicle, by, among other things, leaving the vehicle readily available to the son, with the keys in it, knowing the son's history of driving under the influence and causing wrecks.
Plaintiff asserted that Bozeman Construction owned or at least controlled the vehicle and negligently allowed the son access to it.
Plaintiff asserted the General Motors defendants were strictly liable because the passenger-side air bag was defective—it failed to deploy—and the decedent would have survived but for the defect.
The damages plaintiff sought were the following. On behalf of the survivors, plaintiff sought to recover damages for mental pain and suffering, as authorized by § 768.21(4), Fla. Stat. (2000). Plaintiff also initially sought to recover for medical and funeral expenses, presumably on behalf of the estate. See § 768.21(6)(b), Fla. Stat. (2000).
Plaintiff entered a settlement agreement with the son (Jerry Edward Bozeman) prior to trial under which judgment was entered against the son in the amount of $6,000,000 but no money was paid. Plaintiff settled with the General Motors defendants prior to trial for an amount not disclosed by this record. The record shows no allocation of the General Motors settlement proceeds as between the estate and the survivors.2 Plaintiff voluntarily dismissed all claims against Bozeman Construction prior to trial, recovering nothing against that defendant.3
Plaintiff went to trial only against the father, Johnny Edward Bozeman. Prior to the commencement of the trial, plaintiff abandoned any claim on behalf of the estate. Plaintiff thus went forward only on the claim for the survivors' pain and suffering damages.
Johnny Edward Bozeman denied liability for his son's operation of the vehicle under any of plaintiffs theories and asserted, in addition, that the decedent was comparatively negligent for failure to wear a seat belt and riding with the son knowing he was impaired. Johnny Edward Bozeman also asserted that plaintiffs damages were caused by the failure of the air bag to deploy, which, Mr. Bozeman said, was an intervening cause relieving him of any liability, because the failure of the air bag as a result of a defect was unforeseeable, thus breaking the chain of causation.
Johnny Edward Bozeman testified that he had explicitly forbidden his son to drive the vehicle. There was evidence from which a jury reasonably could have believed or disbelieved that testimony. The jury returned a verdict finding that Mr. Bozeman (the father) did not give his son express or implied consent to drive the vehicle but that the father had negligently allowed the son access to the vehicle so that he could drive it, even without express or implied consent. This rendered the father liable under the common law of Florida, which holds an owner responsible for negligent operation of a vehicle by one negligently allowed access to the vehicle, even an unknown thief. See, e.g., Vining v. Avis Rent A Car Sys., 354 So.2d 54 (Fla.1977).
The jury apportioned fault for the decedent's death 58% to the son as driver and 42% to the decedent, who rode with the son knowing he was impaired, and who failed to wear his seatbelt. The jury found that a properly functioning passenger side air bag would not have deployed in this wreck, thus...
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