5D02-2154 Hibbard v. McGraw

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State: Florida

Court: Florida Southern District Court

Docket No: 5D02-2154.op

Case Date: 12/01/2003

Plaintiff: 5D02-2154 Hibbard

Defendant: McGraw

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

FAITH CARR HIBBARD, O/B/O AMANDA K. CARR, Appellant, v. MICHAEL MCGRAW AND DUAL INCORPORATED, Appellees. ________________________________/ Opinion filed December 2, 2005 Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge. Stephen C. Bullock of Brannon, Brown, Haley & Bullock, P.A., Lake City, for Appellant. Francis J. Milon and Harris Brown of Harris Brown, P.A., Jacksonville, for Appellees. ON RECONSIDERATION ON MANDATE FROM THE SUPREME COURT OF FLORIDA SHARP, W., J. The Florida Supreme Court has remanded this case to us for reconsideration in light of Norman v. Farrow 880 So. 2d 557 (Fla. 2004). In our opinion in this appeal,1 we , agreed with plaintiff's argument that the defendants' proposal for settlement was Case No. 5D02-2154

ambiguous and thus did not support an award of fees to the defendants under the offer of judgment statute. We also reversed the judgment in favor of the defendants because damages were incorrectly calculated. We rejected plaintiff's other arguments based in part on Assi v. Florida Auto Auction of Orlando, Inc., 717 So. 2d 588 (Fla. 5th DCA 1998). In Assi, we approved the trial court's method of calculating the net judgment that first diminished the award of economic damages by the plaintiff's comparative fault and then subtracted the amount of PIP benefits. However, in Norman, the Court

disapproved our holding in Assi. The Court then summarily quashed our decision in this case and remanded for reconsideration in light of Norman. Hibbard v. McGraw 905 So. , 2d 120 (Fla. 2005). Accordingly, we have reconsidered our decision in the light of Norman and issue the following opinion. Amanda Carr, by her mother and guardian, Faith Carr Hibbard, appeals from a final judgment in favor of the defendants in a personal injury action and an award of attorney's fees to the defendants based on their unaccepted proposal to settle the case. Carr raises numerous issues on appeal, only two of which involve reversible error. We reverse the judgment awarding attorney's fees because the defendants' proposal for settlement was ambiguous and thus will not support an award of fees under the offer of judgment statute. We also reverse the judgment in favor of the defendants because damages were incorrectly calculated. In all other regards, we affirm.1

Hibbard v. McGraw, 862 So. 2d 816 (Fla. 5th DCA 2003). The remaining issues involving the seatbelt defense, the jury's allocation of fault, allegedly improper remarks during closing arguments and jury instructions lack merit.
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The ambiguity in the proposal for settlement arises because of Carr's age, the manner in which this lawsuit was pursued and the language of the proposal itself. In August 1997, then sixteen year old Carr was a passenger in a pickup truck driven by her friend, Mark Brock. Carr and Brock were driving behind McGraw on a two-lane road in Jacksonville. McGraw proceeded slowly, so Brock drove into the left lane to pass him. Unfortunately, McGraw was in the process of making a left turn. To avoid hitting McGraw, Brock swerved and his truck went off the road, overturned and hit a tree. Carr, who was not wearing a seatbelt or shoulder harness, fractured her pelvis. In January 2000, Carr, through her mother, Faith Carr Hibbard, filed suit against McGraw and his employer, Dual Incorporated. By this time, Carr was eighteen years old.2 On March 5, 2001, the defendants tendered the following proposal to settle the case: Defendants, MICHAEL McGRAW and DUAL INCORPORATED, by and through their undersigned counsel, hereby submit their proposal for settlement in favor of Plaintiff, AMANDA K. CARR, in the total sum of THIRTY FIVE THOUSAND AND ONE DOLLARS ($35,001.00), exclusive of attorneys' fees and costs, in exchange for an executed full release and voluntary dismissal with prejudice as to all claims against Defendants, MICHAEL McGRAW and DUAL INCORPORATED. This Proposal for Settlement is for the alleged injuries and damages claimed by Plaintiff as a result of the accident which is the subject of this case.

The age of majority was reduced to eighteen years in 1973.

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