PRIOR SIMILAR INCIDENT PROPERLY ADMITTED – REVERSED FOR NEW TRIAL ON UNSUPPORTED DAMAGES
Subaqueous Services v. Corbin, 35 Fla. L. Weekly D208 (Fla. 1st DCA January 21, 2010):
A commercial crabber was a victim of a crash between his boat and a large pipeline that was submerged 2 to 8 inches below the surface of a water marker. The collision threw the man to the ground significantly injuring his back.
On the same day, a grade school friend of the plaintiff’s was working the same area as a commercial crabber, and around the same time, his boat also collided with the same pipeline. On that date, the defendant was at work dredging canals in and around where the plaintiff was traveling.
As part of the evidence at trial, plaintiff’s voc. rehab. testified that plaintiff’s earning capacity as a commercial fisherman was about $12.36 per hour or $25,790.00 annually. The expert called the estimate conservative and found that the plaintiff was suited only to perform sedentary and light duty work to earn between $7.00 and $9.00 an hour or $15,000.00 to $18,000.00 annually. His information was based on a series of compiled general statistics.
The court found there was no abuse of discretion in admitting the prior incident, because it was relevant to the existence of a dangerous condition, which the testimony supported defendant denied notice of. Additionally, evidence of prior similar accidents at or near the same place are admissible if they are not too remote in time and similar, and there were numerous similarities between the testimony about the prior incident and plaintiff’s accident.
However, the court criticized the expert’s computation of damages based on the plaintiff’s tax returns showing an average net annual income of over just $11,000.00. The expert explained that the tax returns did not reflect the extent of gross revenue in a cash-based business like fishing, but meanwhile the plaintiff alluded to unreported sources of income. The court also criticized the information upon which the expert relied in reaching his conclusion about earning capacity.
Rather than limiting the inquiry to “fishing-related” occupations, the expert surveyed a broad range of vocations and used income statistics from occupational codes compiled by the U.S. Bureau of Labor Statistics which included managers in farming, forestry, animal breeding, etc. Because the evidence supported that the plaintiff would only ever be a fisherman, these statistics were inapplicable.
The court also rejected the award for future medical expenses finding that there was no testimony to support the need for the future surgery which cost $30,000.00. However, counsel suggested a value of $5.00 an hour for non-economic compensation ($1,231,000.00). Though the defendant argued the award was “titantic,”, the court further found that it was not so inordinately large as to lack a reasonable relation to the damages proven.
FIFTH DISTRICT UPHELD DENIAL OF ATTORNEY’S FEES UNDER PROPOSAL FOR SETTLEMENT THAT FAILED TO DIFFERENTIATE BETWEEN ACTIVE AND PURELY VICARIOUS TORTFEASOR – CONCURRING JUDGE TAKES OPPORTUNITY, HOWEVER, TO POINT OUT THE FALLACY IN THE LAW
Andrews v. Mcpartland, 35 Fla. L. Weekly D214 (Fla. 5th DCA January 22, 2010):
Citing to the supreme court’s decision in Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005), where the issue of vicarious liability was disputed, a concurring judge who felt bound by existing law, wrote to point out that it is unworkable to require differentiated proposals when vicarious liability is undisputed. He further noted how requiring this could potentially wreak havoc with jury instructions and verdict forms and result in additional unnecessary litigation. Still, because Lamb is the “law of the land,” he had to concur with the denial.
SUBMISSION OF FLAWLESS DISCLOSURE AND ACKNOWLEDGMENT FORM TO BE COMPLETED AND FURNISHED TO INSURER UPON INITIAL TREATMENT, NOT CONDITION PRECEDENT TO RIGHT OF ACCESS TO COURTS TO RECOVER UNPAID CLAIMS IN PIP CASES
Florida Medical and Injury Center v. Progressive, 35 Fla. L. Weekly D215 (Fla. 5th DCA January 22, 2010).
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