Williamson v. Superior Ins. Co., 97-00195.

• Decision Date: 25 August 1999
• Docket Number: No. 97-00195.,97-00195.
• Citation: 746 So.2d 483
• Parties: Curtis WILLIAMSON and Mary Lou Williamson, Appellants/Cross-Appellees, v. SUPERIOR INSURANCE COMPANY, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

746 So.2d 483

Curtis WILLIAMSON and Mary Lou Williamson, Appellants/Cross-Appellees, v. SUPERIOR INSURANCE COMPANY, Appellee/Cross-Appellant.

No. 97-00195.

District Court of Appeal of Florida, Second District.

August 25, 1999.

Rehearing Denied September 14, 1999.

Miriam J. Fisher, Pinellas Park, and Richard A. Bokor, Tampa, for Appellants/Cross-Appellees.

Rex E. Delcamp of Delcamp & Siegel, St. Petersburg, for Appellee/Cross-Appellant.

PER CURIAM.

Curtis Williamson and Mary Lou Williamson (the Williamsons) challenge a final judgment entered in favor of Superior Insurance Company (Superior) in a personal injury action. They allege that the trial court erred in denying their motion for a directed verdict and their motion for a new trial on the issue of permanent injury. Superior cross-appeals the trial court's exclusion of certain medical records and a surveillance tape. We reverse the trial court's denial of the directed verdict and exclusion of evidence.

Curtis Williamson was injured in an automobile accident on June 21, 1992, when his vehicle was rear-ended by a vehicle being driven by James Joseph Sorsby. His injuries included low back injury/pain, neck injury/pain, left shoulder injury/pain, headaches, and temporomandibular joint (TMJ) dysfunction. Mr. Williamson stated at trial that he had sustained a back injury over thirty years prior to the present accident. Those injuries had cleared up during the next two years, and there had been no problems for a period of almost thirty years. Mr. Williamson testified that prior to this accident he was able to maintain his lawn care business without any physical limitations. After the accident he began having problems which interfered with his ability to run the business and resulted in his hiring an additional person. Mr. Williamson's testimony was corroborated by his wife who stated that her husband had no business or social limitations during the last thirty years. Joseph Gwynne, who worked with Mr. Williamson both before and after the accident, testified that Mr. Williamson had no difficulty performing such tasks as heavy lifting, moving dirt or trimming shoulder-high plants until after the June 21 accident.

The Williamsons offered the testimony of three physicians on the issue of the permanency of Mr. Williamson's injury. Doctors DePolo and DiCarlo testified that Mr. Williamson's back and jaw injuries were the result of the accident on June 21, 1992, and that the condition was permanent. Dr. Garcia, a dentist specializing in the treatment of jaw ailments, testified concerning Mr. Williamson's temporomandibular joint (TMJ) injury. Dr. Garcia attributed a 19% permanent disability to the TMJ problem, and he opined that the TMJ was a result of the accident on June 21, 1992.

Superior presented the testimony of two medical experts at trial. Dr. Greenberg, who gave no significance to the bulging disks that Mr. Williamson's doctors found significant, admitted that a previously asymptomatic arthritic condition could be permanently aggravated by a trauma, such as the type of trauma suffered in the present case. Additionally, Dr. Slomka stated that a moderate to severe arthritis condition with little or no symptoms can become symptomatic by moderate to severe trauma.

At the conclusion of the evidence in this jury trial, counsel for the Williamsons moved for a directed verdict on the issue of permanency. After the motion was denied, the jury found Mr. Williamson had not sustained a permanent injury and returned a verdict for the defense on that issue. A timely motion for new trial was subsequently denied.

A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. See Powell v. Napolitano, 578 So.2d 747 (Fla. 2d DCA 1991); Azar v. Richardson Greenshields Sec., Inc., 528 So.2d 1266 (Fla. 2d DCA 1988). A motion for directed verdict should only be denied and the case submitted to the jury if...