5D02-2154 Hibbard v. McGraw

State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2154

Case Date: 12/01/2003

Preview:THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2003

FAITH CARR HIBBARD, o/b/o AMANDA K. CARR, Appellant, v. MICHAEL MCGRAW and DUAL INCORPORATED, Appellee. ______________________________/ CASE NO. 5D02-2154

Opinion filed December 5, 2003 Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge. Stephen C. Bullock of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellants. Francis J. Milon and Harris Brown of Harris Brown, P.A., Jacksonville, for Appellees.

SHARP, W., J.

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, as the defendants properly concede. In all other regards, we affirm. 1 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

The remaining issues involving the seatbelt defense, the jury's allocation of fault, allegedly improper remarks during closing arguments and jury instructions lack merit. The age of majority was reduced to eighteen years in 1973.

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