42
Fla. L. Weekly D2080aTop of Form

Torts
— Collision between defendant’s tractor-trailer and van in which plaintiff was
a passenger while van was being towed on highway in Alabama — Punitive damages
— Attorney’s fees — Trial court erred in granting plaintiff’s motion for new
trial on issues of punitive damages and wantonness, which is required for award
of punitive damages under Alabama law, on basis of erroneously admitted
testimony of state trooper where trooper’s testimony had no relevance to issue
of wantonness — Trial court properly denied plaintiff’s motion for attorney’s
fees under Florida’s offer of judgment statute where parties had stipulated
that case was to be governed by substantive law of Alabama

HEARTLAND EXPRESS, INC. OF IOWA,
Appellant/Cross-Appellee, v. MARK FARBER, AS LIMITED GUARDIAN OF THE PROPERTY
OF JUAN TORRES, Appellee/Cross-Appellant. 1st District. Case Nos.
1D15-1157/16-1356. Opinion filed September 29, 2017. An appeal from the Circuit
Court for Duval County. Harvey L. Jay, Judge. Counsel: James H. Wyman, Hinshaw
& Culbertson LLP, Coral Gables, for Appellant/Cross-Appellee. Dennis R.
Schutt and Jeffrey D. Devonchik of Schutt, Schmidt, & Noey, Jacksonville,
for Appellee/Cross-Appellant.

(LEWIS, J.) Appellant, Heartland
Express, Inc. of Iowa, appeals a final judgment entered in favor of Appellee,
Mark Farber, as Limited Guardian of the Property of Juan Torres, and the trial
court’s order granting a new trial. Appellant contends that the trial court
erred in granting summary judgment on the issues of negligence and contributory
negligence, in denying its motion for a directed verdict on the issues of
negligent training and ratification, the grounds upon which Appellee sought
punitive damages against Appellant, and in granting a new trial on the issues
of wantonness and punitive damages. In his cross-appeal,
Cross-Appellant/Appellee contends that the trial court erred in denying his
motion for a directed verdict on the issue of wantonness and in denying his
motion for attorney’s fees filed pursuant to Florida’s offer of judgment
statute, section 768.79, Florida Statutes. For the following reasons, we
reverse the order granting a new trial but affirm the order denying
Cross-Appellant’s fee motion. We otherwise affirm the final judgment without
further comment.

In 2007, Juan Torres filed a
negligence action against Appellant in Florida, alleging that Willie Jones, one
of Appellant’s drivers at the time, operated his tractor-trailer in a negligent
manner when he collided with the disabled van in which Torres was a passenger while
the van was being towed on a highway in Alabama. In June 2010, both sides filed
a proposal for settlement upon the other party, neither of which was accepted.
In July 2010, Appellant successfully moved for summary judgment as to the issue
of choice of law. Appellant asserted, and the trial court agreed, that Alabama
law should be applied to the issues of liability in the case given that Alabama
had the most significant relationship with the parties. In 2014, Appellee moved
in limine to limit the testimony of Trooper Jason Black, arguing that his
deposition testimony was based exclusively on photographs of the accident scene
that he could not verify, hearsay statements from unknown witnesses concerning
the actions taken by Torres in the disabled van just prior to the collision
with Jones, and a limited inspection of the scene where no measurements were
taken and no accident reconstruction was performed. The trial court granted the
motion in limine, setting forth in part, “Should [Appellant] seek admission of
such testimony, it must proffer the testimony at trial and establish the proper
predicate for its admission under Alabama law.” Prior to trial, the trial court
ruled that while the issue of duty and breach of duty for purposes of the
negligence claim had been decided through summary judgment, the issue of
proximate causation would be decided by the jury.

During trial, portions of the
videotaped depositions of Mr. Jones, the tractor-trailer driver, were played
for the jury. Jones described the accident, testifying that he first saw the
van in which Mr. Torres was a passenger as the van, which was being towed by a
pickup truck, was “[c]oming onto the interstate.” Jones, who had been traveling
at his top speed of sixty-three miles per hour when he first saw the
slow-moving van, looked to the left but was unable to move into the left lane.
He affirmatively responded when asked if he slowed down a little, if he had
nine-tenths of a mile to slow down but could not do so, and if he thought he
was in danger of getting into an accident with the van. Jones slammed on his
brakes when he realized he was about to hit the van. When asked if he did not
engage in “an emergency braking” until he was less than a car-length away from
the van, he replied, “Correct, correct.” When asked if he should have applied
his brakes harder, he replied, “Yes, sir.” After the impact with the
tractor-trailer, the van became disconnected from the pickup truck and hit a
tree, causing injury to Torres.

Appellee later called Walter Ansel
Kennedy, a forensics accident reconstructionist, who testified that Jones
“could have applied light braking, moderate braking and heavy braking and been
able to decrease his speed from 60 to 45 . . . at a point before the point of
impact so that the tractor would not impact the van.” Kennedy saw no evidence
that the individual who was driving the pickup truck that was towing the van
did anything to cause the accident.

Appellant’s counsel later read
portions of the deposition of Mark Lee Edwards, a human factors engineer, into
evidence. Edwards testified that Jones’s “performance” matched what he would
expect from an alert and attentive driver. He disagreed with any assessment
that Jones failed to keep a safe and prudent “lookout.”

After the trial court ruled that
Trooper Black could testify as to his opinions regarding the positioning of the
vehicles prior to the accident, Appellant played the videotaped deposition of
Black for the jury. Black, who was a road trooper when the accident occurred,
was also a traffic homicide investigator/reconstructionist. Black went to the
accident scene in order to assist another trooper. When asked if he had an
independent recollection of the accident, he replied in part, “I remember going
out there. I didn’t actually firsthand investigate the crash. When I arrived on
scene, Trooper Lashley, he had a lot going on, so he asked me to take some
photographs. . . . We also spoke with the people who were out there . . . .”
When asked if it was clear that Jones rear-ended the van in the van’s lane,
Black testified that it appeared “from where [he] looked at it out there” that
the van “snatched” or jackknifed prior to the collision with the
tractor-trailer. He further testified:

As they
were traveling along, if the van were to try to steer to this direction, if he
was not connected, he would be able to steer away. But if you steer that way,
it’s going to cause the front of the towing vehicle, the truck, to go out into
the other lane. Then as the towing vehicle recorrects, that’s going to go ahead
and it’s going [to] bring the back of the van out into the other travel lane,
into the fast lane.

When asked where the impact
occurred, Black replied, “I would have to go out there and look and check the
pictures and everything, but I believe it happened right there on the — just
about on the dotted line, where the impact occurred.” After testifying that
Trooper Lashley determined that the point of impact was in the slow lane, Black
testified that, based upon his experience, that was “probably incorrect.” Black
further testified that the van and pickup truck impacted one another prior to
the collision with the tractor-trailer.

Following Black’s testimony, the
trial court ruled that, “to be fair,” it would permit Appellee’s counsel, who
“did not know about [the court’s] ruling as to Mr. Black . . . until [the
court] made it,” to call Walter Kennedy in rebuttal to testify “about the
physical evidence of impact prior to collision with the tractor-trailer.” When
later asked by Appellee’s counsel whether his analysis or any accident
photographs or evidence showed that there was any movement of the van and the
pickup truck prior to the impact by the tractor-trailer, Kennedy replied, “No,
sir; there were not.”

In its verdict, the jury found that
Jones’s negligence was a cause of the accident and Torres’s injuries and
damages. The jury awarded Torres $888,417.57 for past and future medical and
life care expenses and past and future pain and suffering. The jury found that
Torres had not proven that Jones’s conduct was wanton. Given that finding, the
jury did not determine, for purposes of awarding punitive damages, whether
Appellant implicitly approved or ratified any wanton conduct on the part of
Jones or whether Appellant used Jones’s services without proper instruction
with a disregard for the rights and safety of others.

Following entry of the final
judgment, the trial court denied Appellant’s amended motion for judgment
notwithstanding the verdict and for a new trial. It also denied Appellee’s
motion for attorney’s fees, which was filed pursuant to the proposal for
settlement filed by Appellee in 2010. The trial court found that the resolution
of the case was controlled by Southeast Floating Docks, Inc. v. Auto-Owners
Insurance Company, 82 So. 3d 73 (Fla. 2012), in which the supreme court
held that section 768.79 does not apply in situations where the parties have
agreed to be governed by the substantive law of another jurisdiction. The trial
court noted that the parties in this case had stipulated multiple times that
Alabama law applied to the substantive issues in the case and that Florida law
applied to the procedural issues. The trial court also noted that several of
the stipulations occurred after Southeast Floating Docks, Inc. was
issued.

The trial court granted Appellee’s
motion for new trial as to the issues of wantonness and punitive damages based
upon its determination that it erred in allowing Trooper Black to testify
without a proffer and without the necessary predicate, that Black’s testimony
was impermissibly based upon his subjective beliefs and speculation, and that
Black’s testimony unfairly and prejudicially surprised Appellee’s counsel. This
appeal and cross-appeal followed.

The abuse of discretion standard of
review is generally applicable to a ruling on a motion for new trial. State
Farm Mut. Auto. Ins. Co. v. Williams, 943 So. 2d 997, 999 (Fla. 1st DCA
2006). However, when a motion for new trial addresses issues of law, the
standard of review is de novo. Id. In Bulkmatic Transport Company v.
Taylor, 860 So. 2d 436, 444 (Fla. 1st DCA 2003), we determined that because
the trial court did not base its new trial order on a finding that the verdict
was contrary to the manifest weight of the evidence, but instead based it upon
four grounds that were essentially legal in nature, the trial court was not
entitled to the broad deference generally afforded to trial courts when they
rule on a motion for new trial. We further set forth, “[A] trial court’s error
in the acceptance or rejection of evidence does not necessarily constitute
harmful error. . . . It is only ‘when a substantial right of the party is
adversely affected that a trial court may grant a new trial on this basis.’ ” Id.
at 447 (citation omitted). When a trial court is asked to grant a new trial on
the basis of evidentiary errors, the court, in essence, sits as an appellate
court and “can only reverse itself if the error was substantially prejudicial.”
Id. at 447-48.

Contrary to Appellant’s argument,
the trial court was correct in determining that Trooper Black’s testimony
should not have been admitted into evidence. Not only did Black testify that he
did not “actually firsthand investigate the crash,” but also when he was later
asked if he thought Trooper Lashley’s determination that the crash occurred in
the “slow lane basically” was incorrect, he replied, “Based on my experience, I
would say it’s probably incorrect.” While Appellant relies upon Black’s
statement that it “appear[ed] from where [he] looked at it out there” that the
van and pickup truck jackknifed, his answer was based upon the theory that
Torres had steered the disabled van. Yet, any mention of Torres steering the
vehicle came from statements made by unknown van occupants. Moreover, when he
was asked if the impact occurred in the non-fast lane, Black testified, “I
would have to go out there and look and check the pictures and everything, but
I believe it happened . . . just about on the dotted line . . . .” As the trial
court found in its order granting a new trial, Black’s testimony was primarily
based upon hearsay and speculation and should have been ruled inadmissible. See
Perez v. Bell S. Telecomm., Inc., 138 So. 3d 492, 499 (Fla. 3d DCA 2014)
(noting that under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), an expert’s subjective belief and unsupported speculation are
inadmissible).

With that said, we agree with
Appellant that admitting Black’s testimony did not substantially prejudice
Appellee and entitle him to a new trial on the issues of wantonness and punitive
damages. Under Alabama law, wantonness is defined as the “conscious doing of
some act or the omission of some duty while knowing of the existing conditions and
being conscious that, from doing or omitting to do an act, injury will likely
or probably result.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007). While
negligence is usually characterized as inattention, thoughtlessness, or
heedlessness, implicit in wantonness is a conscious act with knowledge of
danger. Id. Black’s testimony had no relevance to the issue of
wantonness. In arguing wantonness to the jury, Appellee’s counsel focused on
Jones’s state of mind, while asserting that Jones never had the conscious
intent that he needed to slow down. Specifically, counsel argued, “And that’s
why we say Willie Jones was wanton. Willie Jones’ conduct was wanton because he
knew there was a problem, he knew he had to take action, he knew, if he didn’t
take action, someone was going to get hurt.” Appellee’s counsel did not mention
Black’s testimony in the context of wantonness, but instead argued that Black
was not called to the scene to conduct an accident reconstruction.

Appellee contends on appeal that in
light of the fact that Jones himself testified as to all of the elements of
wantonness, “there really is no other explanation other than Black’s
theory as to why the jury would come to such an erroneous opinion, which was
contrary to the established facts . . . .” In our opinion, however, Appellee’s
“explanation” is based upon speculation and conjecture as to why the jury found
no wantonness on Jones’s part. It is entirely possible that the jury accepted
Jones’s testimony as to what occurred but simply did not find that his actions
rose to the level of a reckless or conscious disregard of the safety of others,
especially given Appellant’s expert’s testimony that Jones acted as an alert
and attentive driver would have. Had Jones testified that he made no attempt to
move into the left lane while knowing that he was quickly approaching a
vehicle, the jury may have found that his conduct was wanton. It is not
reasonable though to assume that it was Black’s testimony that led to the
jury’s verdict on a lack of wantonness. Given that the testimony pertained to
causation, an acceptance of such would have precluded a finding that Jones was
a cause of the accident. Yet, the jury in this case did, in fact, make such a
finding. While Appellee’s counsel may have been surprised that the trial court
allowed Black’s deposition to be played, that surprise does not equate to substantial
prejudice, particularly where the trial court permitted Appellee to call
Kennedy in rebuttal. Kennedy testified that nothing he saw in the evidence
showed that either the pickup truck or the van moved prior to the accident,
which contradicted Black’s testimony that the van and pickup truck jackknifed
prior to the collision with the tractor-trailer. Because Appellee was not
substantially prejudiced by the admission of Black’s testimony, he is not
entitled to a new trial on the issues of wantonness and punitive damages. We,
therefore, reverse the order granting a new trial.

Turning to the cross-appeal,
Cross-Appellant contends that the trial court erred in denying his motion for
attorneys’ fees filed pursuant to section 768.79(1), Florida Statutes, which
provides:

In any
civil action for damages filed in the courts of this state, if a . . .
plaintiff files a demand for judgment which is not accepted by the defendant .
. . and the plaintiff recovers a judgment in an amount at least 25 percent
greater than the offer, she or he shall be entitled to recover reasonable costs
and attorney’s fees incurred from the date of the filing of the demand.

In ruling that Cross-Appellant was
not entitled to fees under section 768.79, the trial court correctly found Southeast
Floating Docks, Inc. v. Auto-Owners Insurance Company, 82 So. 3d 73 (Fla.
2012), controlling. In that case, the Florida Supreme Court answered in the
negative the certified question of whether “section 768.79 appl[ies] to cases
that are governed by the substantive law of another jurisdiction and, if so, is
this statute applicable even to controversies in which the parties have
contractually agreed to be bound by the substantive laws of another
jurisdiction.” The supreme court held that “because an award of attorney’s fees
under Florida’s offer of judgment statute is a substantive right, section
768.79 will not apply in instances where the parties have agreed to be governed
by the substantive law of another jurisdiction.” Id. at 81. Applying its
holding to the facts of the case before it, the supreme court concluded that
“Southeast” was not entitled to costs and fees under section 768.79 “because
Southeast and Auto-Owners have contractually agreed to be bound by the
substantive laws of Michigan.” Id. at 82.*

As for the stipulation itself in
this case, Cross-Appellant argues that while a stipulation can be comparable to
a contract in certain instances, both sides invoked section 768.79 when
exchanging proposals for settlement in June 2010. According to Cross-Appellant,
this exchange served as an acknowledgment by both sides that Florida law would
govern the issue of attorney’s fees. The problem with this argument, however,
is that the parties, according to the language used in multiple motions and
memoranda filed after June 2010, stipulated that Alabama law would
govern the substantive issues in the case. On appeal, Cross-Appellant
acknowledges the stipulation language and represents that it was unfortunate
that “the erroneous language [concerning a stipulation] would . . . be copied
and pasted into various pleadings in the future by both [Cross-Appellee] and
Torres . . . .” According to Cross-Appellant, the phrase “all substantive
issues” as used in those various motions and memoranda should be interpreted to
mean issues of liability. However, the language used by Cross-Appellant’s
counsel was not that narrowly tailored. Instead, Alabama law was to apply to
the substantive issues “in the case.” We find it telling, as did the trial
court, that Cross-Appellant’s counsel continued to use the same stipulation
language after the issuance of Southeast Floating Docks, Inc., which
made clear that attorney’s fees awarded under section 768.79 are substantive in
nature. Based upon such, we affirm the trial court’s order denying Cross-Appellant’s
attorney’s fee motion.

AFFIRMED in part; REVERSED in part;
and REMANDED for the reinstatement of the jury’s verdict on the issue of
wantonness. (ROBERTS, J., CONCURS; WINSOR, J., CONCURS IN JUDGMENT WITH
OPINION.)

__________________

*The supreme court disapproved of
both BDO Seidman, LLP v. British Car Auctions, Inc., 802 So. 2d 366
(Fla. 4th DCA 2001), and Bennett v. Morales, 845 So. 2d 1002 (Fla. 5th
DCA 2003), where the Fourth and Fifth Districts held that section 768.79
applied to all civil actions for damages brought in Florida “even where the
substantive law of another jurisdiction is applied” and that section 768.79
mandated “the application of the statute irrespective of the parties’ choice of
applicable substantive law.” 82 So. 3d at 82. In BDO Seidman, LLP, the
Fourth District explained that the parties in the malpractice case had agreed
that Tennessee law governed the case. 802 So. 2d at 367. In Bennett, the
Fifth District noted that the parties to the securities fraud case had agreed that
the substantive law of Virginia applied to the case. 845 So. 2d at 1004.

__________________

(WINSOR, J., concurring in
judgment.) Under the Alabama law applicable here, Heartland Express could be
liable for punitive damages only if the plaintiff proved Heartland Express
either (i) “knew or should have known of the unfitness of the [driver] and
employed him or continued to employ him, or used his services without proper
instruction with a disregard of the rights or safety of others,” or (ii)
“ratified [its driver’s] wrongful conduct.” Ala. Code 6-11-27(a).* Because the
plaintiff did not present evidence from which any reasonable jury could find in
his favor on this issue, the plaintiff is not entitled to a new trial on
punitive damages, and we need not consider whether the trial court should have
excluded the disputed testimony.

There was no evidence that Heartland
Express knew or should have known of its employee’s purported unfitness to
drive. The plaintiff did introduce evidence that Heartland Express subjected
the driver to a written skills test it never bothered to grade. But an ungraded
test does not prove a driver’s unfitness, much less an employer’s knowledge of
it. Nor is the accident itself sufficient to show Heartland Express knew or
should have known of its driver’s unfitness before the accident.

As to ratification, the plaintiff
contends Heartland Express ratified the driver’s conduct by not properly
investigating the accident. But to show ratification, the plaintiff must show
that the employer “expressly adopted” or “implicitly approved of” the tortious
conduct. See Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885,
889 (Ala. 1995). Although in some circumstances Alabama law considers a party’s
failure to investigate when evaluating the ratification issue, see, e.g.,
id., the facts of this case could not support a finding of ratification.

Once the accident occurred, there
was nothing Heartland Express could do to stop it. This was not a case where
the employer’s action after the tortious conduct contributed to the harm or
benefited the employer. Indeed, after the accident, Heartland Express took
action by immediately suspending its driver, who never drove for Heartland
Express again. Cf. Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190, 1195
(Ala. 1998) (“[W]here the specific tortious conduct stops after corrective
action by the employer, [the Alabama Supreme] Court has held that the
corrective action is adequate as a matter of law.”); Joyner v. AAA Cooper
Transp., 477 So. 2d 364, 365 (Ala. 1985) (concluding that employer did not
ratify sexual harassment when it told offending employee that another incident
would result in dismissal and no further incidents occurred). Therefore, even
if Alabama law required Heartland Express to take corrective actions to avoid
ratifying its driver’s conduct, Heartland Express did enough. It is unclear
what more plaintiff would have had Heartland Express do.

Because the plaintiff presented no
evidence to support an award of punitive damages, there was no need to grant a
new trial on the issue of punitive damages. As to the issue of attorney’s fees,
I agree with the majority: the parties stipulated that Alabama substantive law
would apply to all issues, so the plaintiff cannot recover attorney’s fees
under Florida’s substantive law.

__________________

*This statute, which the parties
agree controls, also provides for punitive damages if the employer authorized
the wrongful conduct or, under certain circumstances, if the employee’s acts
were calculated to or did benefit the employer. The plaintiff does not contend
that those provisions apply here.

* * *