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The Week in Torts – Cases from the Week of December 14, 2018
FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 50
CASES FROM THE WEEK OF DECEMBER 14, 2018
PLAINTIFF DID NOT IMPROPERLY STACK INFERENCES TO PROVE NEGLIGENCE.
State Farm v. Hanania, 43 Fla. L. Weekly D2723 (Fla. 1st DCA December 10, 2018):
Plaintiff was a passenger in a vehicle crossing a bridge in Jacksonville. The bridge traverses the St. John’s River and carries four lanes of I-275 in each direction. The plaintiff and her sister in law were traveling behind two other vehicles in the second of the four travel lanes.
About a mile onto the bridge, all three vehicles came to a sudden stop when they came upon a 12-foot ladder lying in the middle of the travel lane. Within seconds of the sudden stop, the plaintiff’s vehicle was struck from behind by another vehicle, injuring the plaintiff.
Before the collision, two witnesses had observed a pickup truck in the right emergency lane. According to the plaintiff, there was a man standing outside of the truck focused on the ladder in the road, looking like he was trying to retrieve it. The driver was never identified.
The plaintiff sued the vehicle which struck her, along with her carrier, State Farm. Following the presentation of plaintiff’s case, State Farm moved for DV arguing that (1) there was no evidence that the ladder came from a vehicle other than circumstantial evidence that did not exclude other possible explanations; and (2) even if the ladder came from a vehicle, there was no evidence of a negligent act by the vehicle’s owner or operator that caused the ladder to end up on the roadway.
The trial court questioned whether there were other plausible non-vehicular explanations for the ladder in the road, given that the bridge was not a pedestrian bridge, and there was no overpass over the bridge and the ladder was located at least a mile along the bridge. State Farm’s counsel replied that a pedestrian could have carried the ladder to that point on the bridge, but the trial court rejected that explanation as not being credible.
State Farm had no additional theories for how the ladder got there, but argued that plaintiff’s case rested on three inferences: (1) that the ladder came from a vehicle; (2) that the owner or operator of that vehicle was negligent; and (3) that the negligence caused the ladder to end up on the roadway. State Farm contended that plaintiff had to establish the first two inferences to the exclusion of all other reasonable inferences.
Counsel further argued that the ladder could have fallen from a vehicle without any negligence of the owner/operator, because the ladder could have been secured by faulty equipment. The trial court found that explanation also improbable.
The court explained that to prove a prima facie case of negligence, a party may use circumstantial evidence, but if the party depends upon inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference to establish a further fact, unless it can be found that the original basic inference, was established to the exclusion of all other reasonable inferences. The purpose of the rule against stacking inferences is to protect litigants from verdicts based on conjecture and speculation.
Here, State Farm argued that plaintiff improperly stacked inferences to prove that a phantom motorist’s negligence caused her injuries. The inferences State Farm claimed were (1) an unidentified phantom motor vehicle was carrying the ladder; (2) the owner/driver failed to make reasonable efforts to secure the ladder; and (3) the owner/driver failed to properly secure the ladder which caused it to fall in the roadway.
The court concluded, however, that there were only two necessary inferences: (1) that the ladder fell on the roadway from a phantom motor vehicle and (2) the ladder fell from the phantom vehicle because the owner/operator failed to properly secure it.
Because the trial court found the first inference was established to the exclusion of all other reasonable inferences, and that inference was further bolstered by testimony that a pickup had pulled over in the emergency lane, and the driver of that truck was focused on the ladder it was properly established.
It was also not plausible that the ladder in the case was thrown onto the bridge by a pedestrian. Because the inference that the ladder came from a phantom vehicle was inescapable, it would constitute an acceptable basis for the second inference that the owner or operator of that vehicle was negligent in failing to properly secure it.
Once an initial inference has been established to the exclusion of all other reasonable inferences, any further inference based upon the initial inference is permissible if reasonable, meaning that it accords with logic, reason or human experience.
At a minimum, the inference that the ladder fell from the phantom vehicle due to the owner/operator’s negligence, as opposed to some other cause like a product defect, was reasonable. Thus, there was not an impermissible stacking of inferences and the trial court properly allowed the case to go to the jury.
FAMILY EXCLUSION IN UM POLICY DECLARED AMBIGUOUS.
Eckols v. 21st Century Centennial Insurance, 43 Fla. L. Weekly D2710 (Fla. 5th DCA December 7, 2018):
The insurance company defendant issued a renewal policy for a woman, her husband and one of their sons. The declarations listed three covered vehicles and included 50,000/100,000 per person/per accident in UM coverage for bodily injury “sustained by an insured and…caused by an auto accident with an uninsured motorist.” The family’s oldest son, who was not a named insured, was injured by an uninsured motorist.
The policy defined “family member” as a “person related to [named insured] by blood, marriage or adoption and who is a resident of the [named insured’s] household.” Plaintiff claimed entitlement to the benefits as a family member.
At the time of the collision, the plaintiff was operating a motorcycle he owned. The insurance company asserted that the plaintiff’s claim was excluded because he was injured while operating an owned vehicle that was not covered under the policy. The exclusion provision read:
A. We do not provide UM coverage for bodily injury sustained:
1. By an insured while occupying any motor vehicle owned by that insured which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.
The plaintiff acknowledged that while the exclusion provision on its face appeared to bar the claim, because the policy required the definition of bold-faced italicized words to be given meaning supplied in the policy and the policy defined “owned” to mean having legal title or legal possession of an “auto” or “trailer,” and the definition of “auto” was defined by the policy to mean a “four-wheel private passenger car, van, pickup or jeep…” the definitions section itself rendered the exclusion provision ambiguous because the motorcycle was not a four-wheel vehicle.
While section 627.727(9)(d) provides that insurers may offer policies for UM coverage containing provisions that do not apply to the named insured or family members residing in his or her household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased, insurers cannot provide less UM coverage than required by the statute. They are free to provide more coverage than the statute requires.
Courts generally construe policies in accordance with their plain language. However, if the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and one limiting it, the policy is considered ambiguous. Ambiguous provisions are construed strictly against the insurer, and liberally in favor of the insured.
Here, the exclusion provision was ambiguous as to whether it applied to motorcycles. Using the definition of “motor vehicle” and then comparing it with the exclusion, created an ambiguity. As such, the court reversed the summary judgment in favor of the insurer.
NO ABUSE OF DISCRETION IN PRECLUDING PLAINTIFF’S EXPERTS FROM INTERPRETING AND OFFERING CERTAIN OPINIONS–COURT PROPERLY INSTRUCTED THE JURY REGARDING THE LACK OF A LEGAL DUTY–NO ABUSE OF DISCRETION IN DENYING PLAINTIFF’S MOTION FOR NEW TRIAL WHEN EXPERT CHANGED OPINION.
White v. Ring Power Corp., 43 Fla. L. Weekly D2729 (Fla. 3rd DCA December 10, 2018):
Plaintiff was employed by the Miami-Dade County Transit Authority and was injured while using a crane that the Authority had rented from Ring Power Corp. Plaintiff was attempting to use the crane to lift a derailed Metro Mover train car and place it back on the tracks, when the wire rope on the crane snapped and the 400 lb. headache ball fell on the plaintiff’s leg, requiring it to be amputated.
After a verdict for the defendant, plaintiff appealed contending (1) that the trial court abused its discretion in excluding certain expert witness testimony offered to support his claim that data from the crane’s load moment indicator (LMI) showed prior overloads which weakened the integrity of the wire rope causing it to snap on the date of the accident; (2) that the trial court erred in determining and instructing the jury that Ring Power had no duty to download the crane’s LMI data before renting it to Miami-Dade Transit; and (3) the trial court erred in admitting certain defense expert testimony which plaintiff contended constituted new opinions and constituted surprise and were prejudicial.
Three days before the accident, Miami-Dade Transit employees were using the crane and noticed that the wire rope spooled on the drum and was cross braided instead of neatly wrapped as it should have been. The employees filed reports and notified supervisors of the defective equipment, but the crane was not taken out of service and ultimately failed, severely injuring the plaintiff.
Plaintiff alleged that Ring Power Corp. was negligent in failing to properly inspect and replace the wire rope on the crane before renting it to Miami-Dade Transit Authority and that previous overloads to the crane diminished the wire rope’s integrity causing it to snap.
Ring Power contended that the wire rope snapped due to the worker’s failure to properly inspect it, take the crane out of service when they discovered cross braiding of the wire rope, and failed to heed the system’s warnings and shut downs during the attempted lift.
Ring Power moved to strike plaintiff’s experts based on Daubert. The court found none of the experts were qualified to interpret the LMI data or to offer opinions about whether the crane was actually overloaded. That ruling was based on the experts’ own testimony that they lacked knowledge and familiarity with LMI data and LMI systems.
Before trial, Ring Power filed a motion for partial summary judgment stating it had no duty to download LMI data. The trial court granted the motion.
The court found that because none of the experts were qualified to interpret the LMI data or to offer opinions, the trial court did not abuse its discretion in excluding those portions of the experts’ testimony. Regardless of whether the trial court ultimately applied Frye or Daubert, the plaintiff failed to make the threshold showing that the witness was qualified.
The trial court also did not err in determining that Ring Power had no legal duty to download the LMI data, and did not err in giving a special instruction on that issue. There was no evidence in the record to support the contention that the failure to download or review the LMI historical data, foreseeably created a broader zone of risk when the crane underwent inspections at the end of each rental period, and a thorough inspection was conducted shortly before the accident.
Finally, the court noted that even if the defendant’s experts’ live testimony could be said to constitute new or different opinions the trial court properly denied the motion for new trial because the testimony did not result in prejudice to the plaintiff. The plaintiff took the defendant’s expert’s deposition as a “witness” but did not seek to redepose the expert following his designation as an expert witness.
Also, the plaintiff had designated this witness as his own expert before trial, and knew the expert was going to testify regarding the cause of the accident as related to the LMI data and the crane involved in the accident. Also, before the witness actually testified the plaintiff was given an opportunity to further interview the witness and depose him concerning what plaintiff believed were new or different opinions.
Plaintiff never requested a continuance of the trial to cure any prejudice he claimed to have suffered on appeal.
The court affirmed the defense verdict.