TONY DAMICO AND JOSEPHINE DAMICO, HIS WIFE, APPELLANTS,
v.
WAYNE WILLIAM LUNDBERG, APPELLEE
Explore caselaw by topic → Browse Automobile Negligence cases and more on FLexlaw
PER CURIAM.
Affirmed.
BOARDMAN, Acting C. J., and SCHEB and OTT, JJ., concur.
OTT, Judge.
In this automobile negligence action the circuit court, acting under the authority of Section 627.7262, Florida Statutes, dismissed defendant’s liability insurance carrier. The action thén proceeded to trial on the merits and resulted in a defense verdict. The Florida Supreme Court has now ruled that Section 627.7262 is an unconstitutional intrusion upon that court’s rule-making power. Markert v. Johnston, 367 So. 2d 1003 (Fla.1979). As appellants urged on this appeal, and now on petition for rehearing, the action of the circuit court in ordering such dismissal was undeniably erroneous.
Appellants further insist that such error was prejudicial per se, automatically requiring reversal if properly contested, and cite Godshall v. Uniguard Insurance Co., 281 So. 2d 490 (Fla.1973) as authority for that proposition.
We are not unmindful of Godshall, but we do not believe that by it our supreme court meant to abrogate the cardinal principle of appellate review: error is reversible only when, considering all the facts peculiar to the particular case under scrutiny, it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed. 3 Fla.Jur.2d 499; Stecher v. Pomerory, 253 So. 2d 421, 422 (Fla.1971).
Here, no amount of emphasizing the financial responsibility of the defendant could counteract plaintiff husband’s admission that he entered the intersection in which the collision occurred without knowing whether the traffic light was red or green, because he and his wife were talking and he was not paying attention to the light. Supplementing that damaging admission was the positive testimony of the defendant, the driver of the vehicle immediately behind the defendant, and the driver of a vehicle which had been stopped waiting for the light to change, that defendant entered the intersection on a green light.
That, together with the facts revealed to the jury concerning the relative economic positions of the parties (plaintiffs being elderly, retired and not in the best of health, while defendant was younger, steadily employed and was returning home from a golf match at the time of the accident), prevent us from speculating that the jury might have found liability on the part of the defendant if they had known he was insured. Even had that information been added, the state of the evidence was such that a verdict for appellants would have been incredible. We simply do not feel that reversible error was made to appear. The order of dismissal and judgment are affirmed.
BOARDMAN, Acting C. J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
-
Esaw v. Esaw, 965 So. 2d 1261 (Fla. 2d DCA 2007)…ly probable that a result more favorable to the appellant would have been reached if the error had not been committed.’ ’’ Florida Institute for Neurologic Rehab., Inc. v. Marshall, 943 So. 2d 976, 979 (Fla. 2d DCA 2006) (quoting Damico v. Lundberg, 379 So. 2d 964, 965 (Fla. 2d DCA 1979)). The appellant has the burden of providing a proper record to the reviewing court, and the failure to do so is “usually fatal” to the appellant’s [*1265] claims. Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). W…
-
McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)…a departure from established rules, commanding a reversal.” 383 So. 2d at 1184. The majority opinion declines to follow Stricklin, preferring instead to analyze the pleadings and evidence under the “harmless error” rule, citing Damico v. Lundberg, 379 So. 2d 964 (Fla. 2d DCA 1979), and Anthony v. Douglas, 201 So. 2d 917 (Fla. 4th DCA 1967). But neither case is persuasive authority for affirming the appealed order. In Damico, an automobile negligence claim was tried to a jury verdict in favor of the insured…1 / 2
-
Special v. Ivo Baux, M.D., 79 So. 3d 755 (Fla. 4th DCA 2011)…s error in civil cases.22 This test eases the difficulty of the strict “but-for” test by requiring some lesser degree of probability that the result in the case would have been different.23 The third line of cases, starting with Damico v. Lundberg, 379 So. 2d 964 (Fla. 2d DCA 1979) (on rehearing), uses somewhat different language to put a finer point on the test of the probability of a different result. In Damico, the second district held that an “error is reversible only when, considering all the facts pecu…1 / 3
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Markert v. Johnston, 367 So. 2d 1003 (Fla. 1978)
- In re Florida Rules of Criminal Procedure, 253 So. 2d 421 (Fla. 1971)