5D04-3323 Werneck v.Worrall

State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-3323

Case Date: 01/02/2006

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

ROBSON B. WERNECK, et al., Appellants, v. ANNAMARIE WORRALL, etc., Appellee. ________________________________/ Opinion filed January 6, 2006 Appeal from the Circuit Court for Osceola County, R. James Stroker, Judge. Sylvia H. Walbolt and Christine R. Dean of Carlton Fields, P.A., Tampa, and Nicholas A. Shannin of McDonough, Wieland, Shannin & Gumula, Orlando, for Appellants. Nancy Little Hoffman of Nancy Little Hoffman, P.A., Pompano Beach, and Robert L. Spector of Robert L. Spector, P.A., Fort Lauderdale, for Appellee. PER CURIAM. In this wrongful death action arising from a motor vehicle collision, Appellants, against whom a substantial jury verdict was returned, assert three points on appeal. Finding reversible error on one of these points -- improper opening and closing by counsel for Appellee -- we reverse and remand for a new trial on damages only. Appellee's late husband, Robert Worrall, died of a heart attack two days after suffering severe burns in a motor vehicle accident. Mr. Worrall was traveling in his truck Case No. 5D04-3323

on a dark stretch of a state highway when he collided with a parked tractor-trailer. The driver of the tractor-trailer had pulled over to fix a problem with his trailer's lights but did not pull his trailer completely off the road. Instead, the back side of the trailer was about four-and-a-half feet into the traffic lane. Moreover, the driver had failed to put out

reflector triangle warnings, required by law under these circumstances. Appellee, as personal representative of her late husband's estate, ultimately brought a 10-count complaint against the driver and four other entities: the driver's employer and owner of the tractor, Donvors Trucking, Inc. ("Donvors"); the owner of the trailer, Florida Independent Delivery Services, Inc. ("FIDS"); the company whose advertisement was on the trailer, R.T.G. Furniture Corp., ("R.T.G."); and Rooms to Go, Inc. ("Rooms"). Appellee alleged that both R.T.G. and Rooms had joint ventures with the owner of the trailers and further alleged that R.T.G. was vicariously liable for the actions of the owner of the trailers. The joint venture count against Rooms, the only count against Rooms, was dismissed by the trial court before the trial. At trial, at the close of her case-in-chief, Appellee voluntarily dismissed her suit against R.T.G. Near the beginning of his opening statement, Appellee's counsel stated: In this case we have a whole bunch of defendants. We have R.T.G., Rooms to Go. Rooms to Go as you know is a

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