5D01-827 Basel v. McFarland

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-827

Case Date: 04/01/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

ROYAL MENDE BASEL and STEVEN KANE as CoPlenary Guardians of the person and property of MARK VICTOR BASEL, Appellants, v. Case No. 5D01-827 McFARLAND & SONS, INC., a foreign corporation, et al., Appellees. / Opinion filed April 5, 2002 Appeal from the Circuit Court for Brevard County, Theron A. Yawn, Jr., Senior, Judge. O. John Alpizar of Alpizar, Ville & Camfield, Palm Bay and Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellants. Michael V. Elsberry and Harry W. Lawrence of Lowndes, Drosdick, Doster, Kantor & Reed, Professional Association, Orlando, for Appellees McFarland & Sons, Inc. and Jonathan Queen. Paul D. Jess, General Counsel, The Academy of Florida Trial Lawyers, Tallahassee and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, Amicus Curiae for The Academy of Florida Trial Lawyers. Hal B. Anderson of Billing, Cochran, Heath, Lyles & Mauro, P.A., Fort Lauderdale, Amicus Curiae for Florida Defense Lawyers Association. COBB, J.

We consider two issues in this appeal: (1) whether it was error to apply the October 1, 1999 amendment to section 768.81, Florida Statutes, limiting joint and several liability, retroactively to this personal injury cause of action which accrued in August, 1994 and (2) whether the trial court erred in refusing to grant the plaintiffs a new trial or additur on the issue of damages. The plaintiffs, Royal Basel and Steven Kane, are co-guardians of Mark Basel (Basel) who suffered severe brain damage as a result of injuries sustained when the vehicle he was in was struck by a tractor-trailer on I-95 in August, 1994. As a result of his injuries Basel is permanently and totally disabled. The facts surrounding the accident are succinctly set forth in McFarland & Son, Inc. v. Basel, 727 So. 2d 266, 268 (Fla. 5th DCA), rev. denied, 743 So. 2d 508 (Fla. 1999) [Basel I]: Jonathan Queen was driving an eighteen-wheel car carrier for his employer, McFarland & Son, Inc., at 2:00 a.m. on August 6, 1994. He was headed north on I-95 and had just crossed over the Garden Street overpass in Titusville when he saw a 1984 Grand Prix parked across the right-hand lane and extending perhaps seven inches into the left lane. Later measurements showed the car was between 800 and 924 feet from the top of the overpass. According to Queen, the car' s lights were off. He swerved to the left and braked, jack-knifed, and hit the car. The car driver, Jean Ann Basel, was killed instantly; her husband, Mark, was ejected from the car and suffered extreme permanent brain injury. Mark' s injuries left him without memory of the accident. Friends of the two testified Mark was living apart from Jean. The night of the accident, the two coincidentally wound up at the same bar and left together in Jean' s car. Blood tests showed both were legally drunk at the time of the accident. There is no explanation for how or why the two ended up parking at a 70-degree angle across I-95. Plaintiffs filed a negligence suit against Jean' s estate, Queen, and McFarland & Sons, Inc. and later successfully 2

moved to amend their complaint to add a count against McFarland & Son, Inc. for the negligent hiring, training, and supervision of Queen. McFarland & Son, Inc. and Queen (defendants) raised the comparative fault of Basel and Jean Basel as affirmative defenses. In Basel I this court reversed the judgment in favor of Basel finding error in the failure to direct a verdict in favor of McFarland & Son, Inc. on the negligent hiring count. The cause was remanded for a new trial which occurred in November 2000. The jury returned a verdict on November 17, 2000 which apportioned 19% fault to Queen, 66% to Jean Basel and 15% to Basel. The jury awarded Basel $950,886.07 for past medicals, $224,108 for past lost wages, $868,000 for future medical expenses, and $484,000 for future loss of earning capacity. The jury awarded zero for past and future pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, or loss of capacity for the enjoyment of life. When counsel for plaintiffs objected, counsel for Queen and McFarland & Son, Inc. agreed that the jury had to award some amount for this element of damages. The jury was so instructed and re-deliberated before returning an award of $33,333.33 for past pain and suffering, and $166,666.67 for future pain and suffering, for a total of $2,726,994.07 in damages. The plaintiffs filed a motion for additur, or in the alternative motion for new trial on damages only, asserting that the undisputed evidence established that Basel' s past lost wages were $317,450, his future loss of earning capacity was $933,067 and his future medical expenses were $3,869,471. The defendants moved the court to enter judgment in accordance with section 768.81, Florida Statutes, as amended by Chapter 99-225 section 27, Laws of Florida, 3

which became effective October 1, 1999. Application of the 1999 statutory amendment would result in a judgment against Queen and McFarland & Son, Inc. being limited to $718,128.90. The plaintiffs filed a motion asking the court to enter judgment against the defendants in accordance with the version of section 768.81, Florida Statutes that existed prior to the October 1, 1999 amendment. Application of that version of the statute would result in judgment being entered against Queen and McFarland & Son, Inc. in the amount of $2,147,945 in economic damages and $38,000 in non-economic damages, for a total of $2,185,995. Judgment would also be entered against the Estate of Jean Basel for $2,147, 945 in economic damages and $132,000 in non-economic damages, for a total of $2,279,945. The trial court denied the plaintiffs'request for an additur or new trial on damages. The court also ruled that the October 1, 1999 version of section 768.91, Florida Statutes, was applicable to Basel' s cause of action and proceeded to enter final judgment against Queen and McFarland & Son, Inc. for $718,128.90 (economic damages of $650,128.90, non-economic damages of $38,000), and against the Estate of Jean Basel for $2,279,945.

APPLICATION OF OCTOBER 1, 1999 AMENDMENT TO SECTION 768.81, FLORIDA STATUTES, TO PENDING CAUSE OF ACTION

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