08-4629 PHILLIPJ. GRIFFIS, as Personal Representative of the Estate of FRANK E. GRIFFIS, deceased, v. HOWARD E. WHEELER, JR., and DIANE A. WHEELER

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida First District Court » 2009 » 08-4629 PHILLIPJ. GRIFFIS, as Personal Representative of the Estate of FRANK E. GRIFFIS, deceased, v. HOWARD E. WHEELER, JR., and DIANE A. WHEELER

State: Florida

Court: Florida First District Court

Docket No: 08-4629

Case Date: 07/31/2009

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA PHILLIP J. GRIFFIS, as Personal Representative of the Estate of FRANK E. GRIFFIS, Deceased, Appellant, v. HOWARD E. WHEELER, JR., and DIANE A. WHEELER, Appellees. _____________________________/ Opinion filed July 31, 2009. An appeal from the Circuit Court for Levy County. David A. Glant, Judge. Robert P. Avolio and Tracy L. Markham of Avolio & Hanlon, P.C., St. Augustine, for Appellant. Randy Fischer and R. Lance Wright of Boehm, Brown, Fischer, Harwood, Kelly & Scheihing, P.A., Ocala, and Rhonda B. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellees. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D08-4629

WOLF, J. Phillip J. Griffis, as Personal Representative of the Estate of Frank E. Griffis, appeals a final judgment after a directed verdict in favor of the appellees/defendants, Howard E. Wheeler, Jr., and Diane A. Wheeler. They raise two issues on appeal: (1) whether the trial court erred in directing a verdict where

evidence was presented from which a jury could find that the operation of appellees' motor vehicle constituted negligence, and (2) whether the trial court erred in ruling that section 768.36, Florida Statutes (2006), applies in a wrongful death action against the claims of the personal representative brought on behalf of the survivors. We find merit as to the first issue. In October 2006, appellant, Phillip J. Griffis, as Personal Representative of the Estate of Frank E. Griffis, the decedent, filed a wrongful death action against appellees, Howard and Diane Wheeler. Appellant brought the suit on behalf of the Estate and for the benefit of the decedent's parents. Appellant alleged that

appellees negligently operated their vehicle on or about October 29, 2004, on U.S. Highway 27 so that it fatally collided with the decedent, who was 39 at the time. Appellant sought medical and funeral expenses and damages for the loss and value of support services. Appellees affirmatively defended on the grounds of comparative negligence, collateral source, and the decedent's intoxication at the time of the accident. According to appellees, the decedent's blood alcohol level exceeded .08 percent at the time of the accident; the record shows that the decedent's ethanol/alcohol concentration was .27. Appellant moved for partial summary judgment on appellees' third affirmative defense of intoxication, arguing that the defense did not apply when a 2

claim was brought by a personal representative. Appellant also moved to strike the affirmative defense. The trial court denied the motions. The trial court found that the intoxication defense presented questions of fact regarding "alcohol and the amount of alcohol (or not) of the decedent as well as issues of comparative fault." In noting appellant's argument that the "plaintiff" referred to in section 768.36, Florida Statutes, does not include an estate, the court set forth, "[T]he claim in this wrongful death suit is purely derivative through the decedent. Plaintiff's preferred interpretation of this statute is that the Plaintiff (the Estate) in this wrongful death suit can acquire greater rights derivatively than the decedent himself would have, had he survived." The trial court stated: Plaintiff concedes that if [the decedent] had survived, then [he] would be barred any recovery if the standards of F.S. Sec. 768.36(3) were met. Yet by virtue of his death, his Estate acquires greater legal rights than [the decedent] himself could ever have had (again, assuming the standards of F.S. Sec. 768.36 were met). Statutory interpretation cannot be stretched to an absurd result. At trial, the following was established: U.S. Highway 27 is a four-lane, divided highway with two lanes going in each direction. Appellee, Mr. Wheeler, was driving in the right-hand lane. When he came over a hill, the decedent was walking in his lane of traffic. While the testimony indicated that appellee, who was driving under the speed limit, could not have braked in sufficient time to avoid the collision, the testimony concerning his ability to take evasive action was somewhat unclear. 3

Mrs. Wheeler, who was a passenger in the vehicle, said that when she first saw the decedent he was right in front of the passenger seat of the truck. She then turned to Mr. Wheeler, who was driving the truck. Her testimony as to any evasive action taken by Mr. Wheeler was ambiguous. "I don't remember specifically what he was doing. I just remember knowing that he was already reacting. I was kind of in shock, so I don't remember his specific actions. I just know that mentally I knew he was reacting, you know." She did not recall their truck moving to the left or right in any "traumatic" way. She did not recall the truck braking or hearing a horn. She testified that the accident damaged the truck's hood and light on the right side. Because Mr. Wheeler was unable to appear because of medical issues, his deposition was introduced at trial. His testimony as to what evasive action he took, after seeing the decedent in his lane, was also unclear. When asked when he first saw the decedent in terms of distance, he replied, "I estimate but

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