RUIMY V. BEAL

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RUIMY V. BEAL

State: Florida

Court: Florida Third District Court

Docket No: 07-0533

Case Date: 11/26/2008

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2008
Opinion filed November 26, 2008. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D07-533 Lower Tribunal No. 04-12718 ________________

Laura Ruimy,
Appellant/Cross-Appellee, vs.

Flor N. Beal, et al.,
Appellees/Cross-Appellants. An appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. Grover & Weinstein, Marvin Weinstein, Joel S. Perwin, and Richard B. Rosenthal, for appellant/cross-appellee. Luks, Santaniello, Perez, Petrillo & Gold, James P. Waczewski (Tallahassee); Dearman & Gerson, and Mark Dearman, for appellees/crossappellants. Before GERSTEN, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge. PER CURIAM. Affirmed. See Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000) (stating that new trial is warranted where argument of counsel is determined

to be improper, harmful, incurable, and damaging to trial fairness); McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992) (holding that whether and to what extent defendant's conduct foreseeably and substantially caused injury is an issue to be determined by the jury based on the specific facts of the case).

Ruimy v. Beal Case No. 07-533 2

RAMIREZ, J., (concurring). This is an appeal of an order granting a new trial to the defendants/appellees after a jury awarded damages to the plaintiff, Laura Ruimy, of approximately $778,000. The jury found that the driver and the owner were each 50% at fault. The trial court overturned the verdict and granted a new trial for the stated reason that the cumulative effect of improper comments by plaintiff's counsel during closing argument denied the defendants a fair trial. Although I believe that the comments fell far short of the high threshold required to overturn a jury's verdict, I concur with the majority in affirming because the standard of review is abuse of discretion and, in view of the decision of the majority of this court, I cannot state that the trial judge was unreasonable. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) ("If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness."). I. Ruimy, an 18-year-old student, was injured when struck by an automobile as she lawfully crossed a Miami Beach crosswalk. The vehicle was driven by

defendant Alex Beal, and was owned by Alex's sister, co-defendant Flor Beal.

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Until the morning of trial, the sibling defendants used the same attorney, Mr. Daniel Santaniello. Their joint defense evidently did not present an ethical

problem until the morning of trial. Alex's liability for the accident was never contested. He had driven into the crosswalk against the light, then fled the

accident scene before the police arrived, leaving Ruimy lying semi-conscious in the street with, among other injuries, a fractured pelvis and spinal vertebrae, and multiple leg and foot fractures--an incident for which Alex was later criminally convicted. But on the morning of trial, Mr. Santaniello announced that there was a conflict of interest between the siblings, so he was withdrawing as counsel for Alex, and remaining as counsel only for Flor. Alex's new counsel, Mr. Mark Dearman, announced his appearance and formally admitted Alex's liability. Mr. Santaniello then advised the court that Flor would contest her own liability and contend that Alex had taken the car without permission. Ruimy's counsel claimed to be surprised. The joint answer filed in this case had denied each and every allegation contained in plaintiff's complaint, then listed eighteen (18) affirmative defenses, the first of which was that United Automobile Insurance Company had timely tendered its insurance policy limits. During the two and a half years that the case was pending, Mr. Santaniello represented both defendants and never intimated that brother Alex had stolen his sister's car. The new tactic raised a number of questions: (1) If the car was taken without Flor's

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permission, why was the car never reported stolen? (2) Why would Flor's insurance carrier tender the policy limits? (3) Why wait from December 28, 2003 (the date of the accident) until November 27, 2006, to assert for the first time that Alex had stolen the car and separate counsel was necessary? Even on the eve of trial, defense counsel was less than candid, telling the court that he "felt uncomfortable trying the case where she would have an indemnity claim back against [her brother] some day." Counsel then went on to explain: "This isn't a liability case. Assuming we will admit liability, we'll ask Counsel not to get into too many details on liability... We fell asleep at the wheel, apparently." At trial, the testimony of both Alex and Flor matched. They both claimed that Alex took the car without Flor's permission. In fact, Mr. Santaniello predicted it before jury selection: "There is an issue on consent. They both say he didn't have consent to take the vehicle..." Ruimy's counsel attempted to counter with the obvious response--that the entire defense had been contrived in an attempt to avoid paying whatever verdict the jury awarded. It is undisputed that brother Alex was uninsured, usually unemployed, and probably judgment-proof.

Understandably, plaintiff's counsel sought to challenge the defendants' credibility and show the jury that their testimony was motivated by an attempt to avoid satisfying any potential judgment.

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During trial, both Flor and Alex asserted that Alex took the car without Flor's consent while Flor was out of town on a business trip. Alex testified that he lived with his parents; that on previous occasions Flor had left the keys to her vehicle on a hook by the front doorway of their parents' home; and that he had previously driven her car. He admitted that when he had previously driven her car (just like this time), he had done so by taking the car keys off the hook. He acknowledged that the location of the keys was "readily available for anyone in your house to use to operate the car." He also admitted driving it without any family members in the car. Alex maintained that, until after this accident, he had never informed Flor that he had driven her car. He testified that Flor told him not to drive her car "anywhere up to 20 times" or "possibly 50 times." volunteered that he was effectively judgment-proof: Q: A: Q: A: Did your sister ever tell you a [sic] she was that you might take her car? That she was afraid I might take her car? Yeah. No. I asked permission and she said no and she told me it was because if anything happened to her car I wasn't financially capable of reimbursing her in any way. Alex

Moments later, he voluntarily brought up his own lack of insurance: Q: A: Did [Flor] tell you you should be a more responsible driver? I can't remember her saying those exact words but everyone in my family was pretty much, you know, giving me a hard time. I wouldn't say a 6

Q: A: Q: A:

hard time but yeah, words, working me over about how I should be more careful and more responsible in the future. Do you drive your father's car? Now? Well, then. Then, I don't believe so. Not until he put me on his insurance.

While maintaining that she did not consent to Alex's use of her car, Flor admitted that she did not recall what, if anything, she told her parents about the use of her car before she left on this business trip. She testified that she was concerned because Alex had been in multiple accidents using other people's vehicles. She admitted that before leaving on her trip and leaving her car keys on the hook at the front door, she did not tell Alex not to use her car, believing "it was just clear he was not supposed to" because she had told him that in the past. She further admitted that her prohibition was not absolute, but that Alex was authorized to use the car if an emergency arose. Their father confirmed this. When asked about previous occasions on which Alex had used her car, Flor denied any specific knowledge, but she also said it was "plausible" that her parents allowed him to drive it. She also testified: Q: I want to know why he took your car even though he should have assumed or known from the past that he should not have taken your car. Have you ever dealt with a teenager? He's not a teenager now. 7

A: Q:

A:

He's a 26-year-old teenager; okay?

Flor also admitted that, given Alex's immaturity, it was certainly possible that he would take the keys off the hook even if instructed not to do so: Q: So you could not foresee your brother taking the keys from the hook that was available while you were on vacation? I used to take my parents' keys off the hook, off the nightstand, out of the kitchen, you know, take my parents' cars when I was a kid, too, without them knowing. So there is a possibility, sure, there is a possibility in any household that somebody is going to take the keys and do something they are not supposed to do. I suspected that he would know.

A:

Just as Alex had volunteered the fact that he was essentially without assets, Flor said the same thing about him--again without any prompting from Ruimy's counsel: Q: Is it your testimony that you specifically prohibited your brother from using your car while you were on vacation, out of town, using a car that you were not using, using a car that was in your

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