CLINTON HOWARD TOMMIE, DOROTHY L. TOMMIE, AND ALLSTATE INSURANCE COMPANY, PETITIONERS,
v.
REGINALD LACHANCE, JOCELYN LACHANCE, THE ESTATE OF STEPHEN LACHANCE, DECEASED, THROUGH THE CO-ADMINISTRATORS, REGINALD LACHANCE AND JOCELYN LACHANCE, RESPONDENTS

Fla. 4th DCA | 1982-04-14
No. 81-1353
LETTS, C. J., and BERANEK, J., concur.
412 So. 2d 439 Florida District Court of Appeal, Fourth District (1982) Positive Treatment
Cited by 29 cases

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Synopsis

The court addressed whether two separate wrongful death and injury actions arising from the same motor vehicle-dirt bike collision should be consolidated. The defendant sought consolidation to prevent potentially contradictory verdicts regarding which boy operated the dirt bike, and the court granted the petition for writ of certiorari, holding that consolidation was required to prevent manifest injustice.


Holding

The court granted the writ of certiorari and quashed the order denying consolidation, holding that consolidation should have been ordered because denial could result in repugnant and inconsistent verdicts that would be unjust and impossible to remedy by appeal.


Headnotes

[1] Consolidation of actions ordinarily rests in the sound discretion of the trial court.

[2] A trial court's denial of a motion to consolidate actions may be reviewed by writ of certiorari when the denial fails to conform to the essential requirements of law and…

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Key Quotes

“consolidation of actions ordinarily rests in the sound discretion of the trial court”

Establishes the general rule but also the exception when discretion is abused

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Facts & Procedural History

A motor vehicle collided with a dirt bike carrying two boys, killing Stephen LaChance and injuring David Wilson. Stephen's parents sued as administrat…

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Opinion of the Court
GLICKSTEIN, Judge.

GLICKSTEIN, Judge.

Petitioners are the operator, owner and insurer of a motor vehicle that collided with a dirt bike on which two boys were riding, killing one, Stephen LaChance, and injuring the other, David Wilson. Stephen’s parents, as administrators of his estate, brought an action for wrongful death against petitioners, alleging that Stephen was a passenger on the dirt bike and David was the operator. Petitioners’ answer denied that Stephen was the passenger and raised the affirmative defense of comparative negligence.1

David’s deposition was taken in the La-Chance action and he testified that he had gone to Stephen’s home on the date of the accident to buy the bike for $500. Prior to that time David had never driven nor ridden upon a motorcycle, nor had he ever driven a dirt bike. David only recollects having watched Stephen drive the dirt bike away from the LaChance home without him and then waking up in the hospital. He only recalls having seen trees along the side of the road down the avenue and next to Stephen’s block.

Through his mother, David brought an action against petitioners and the administrators of Stephen’s estate. He alleged he was the passenger of the dirt bike and Stephen its operator.2 Petitioners denied that David was the passenger and raised the affirmative defense of David’s negligence. Petitioners then moved to consolidate the LaChance and Wilson actions. The motion was denied and they filed this petition.3

We said in Brody Construction, Inc. v. Fabri-Built Structures, Inc., 322 So. 2d 61 (Fla. 4th DCA 1975) that the consolidation of actions ordinarily rests in the sound discretion of the trial court. In the present case, however, the trial court recites no reason or basis for entry of its order and the parties responded to our order that the hearing on the motion was unreported. As a result, we are unable to step into the shoes of the trial judge to attempt to deter mine his perception of what was presented to him.

What we do perceive, however, is the anomaly which denial of consolidation can cause if repugnant and inconsistent verdicts are reached in the two actions. It is possible two independent verdicts can find (1) neither boy or (2) both boys operated the dirt bike. Either possibility is unjust and can be prevented by consolidation. As petitioners point out with respect to the first possibility, and as we observe as to the second, if these anomalies occurred they would not become apparent until after the second judgment. By then the time for appeal of the first verdict long since may have expired.

With such possibilities, the trial court should have ordered consolidation. Failure to do so did not conform to the essential requirements of law and reasonably may cause material injury irremediable by plenary appeal. We, therefore, grant the writ of certiorari and quash the order denying consolidation.

LETTS, C. J., and BERANEK, J., concur. . In their answer petitioners sought to diminish any recovery by the degree of the decedent’s negligence and/or assumption of risk; these affirmative defenses have merged. Blackburn v. Dorta, 348 So. 2d 287 (Fla.1977); Blaw-Knox Food & Chemical Equip. Corp. v. Holmes, 348 So. 2d 604 (Fla. 4th DCA 1977).

. David was not named as a defendant in the LaChance action.

. Respondents have duly notified counsel in the Wilson action of the motion to consolidate, the order thereon, and all of the proceedings in this court.


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Citator

Cited By (14 total)

  • Y.H. v. F.L.H. and K.W.H., 784 So. 2d 565 (Fla. 1st DCA 2001)
    …ur. See Wetherington v. State Farm Mut. Auto. Ins. Co., 661 So. 2d 1276, 1277 (Fla. 2d DCA 1995). Only in rare cases, moreover, is “it appropriate to grant certiorari relief from orders denying motions to consolidate. See, e.g., Tommie v. LaChance, 412 So. 2d 439 (Fla. 4th DCA 1982).” Pages v. Dominguez, 652 So. 2d 864, 866 (Fla. 4th DCA 1995). The decision to consolidate actions ordinarily falls within the sound discretion of the trial court. Barnes v. Meece, 530 So. 2d 958 (Fla. 4th DCA 1988); Brody Const…
  • U-Haul Co. OF N. Fla., Inc. v. White, 503 So. 2d 332 (Fla. 1st DCA 1986)
    …es before three different trial judges. We find that the possibility of inconsistent verdicts and the interests of judicial economy outweigh any prejudice which might arise from a delay caused by consolidation of these cases. See Tommie v. LaChance, 412 So. 2d 439 (Fla. 4th DCA 1982). Therefore, the petitions for writ of certiorari filed by petitioners U-Haul and Fleetwood are hereby granted and the trial court’s order denying U-Haul’s motion to consolidate for trial is quashed. SMITH and ZEHMER, JJ., concu…
  • Williams v. Winn Dixie Stores, Inc., 443 So. 2d 195 (Fla. 3d DCA 1983)
    …e Company, Inc., 434 So. 2d 338 (Fla. 3d DCA 1983); Hylazewski v. Wet ’N Wild, Inc., 432 So. 2d 1371 (Fla. 5th DCA 1983) (Cowart, J., specially concurring); O’Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982); Tommie v. La-Chance, 412 So. 2d 439, 440 n. 1 (Fla. 4th DCA 1982), (2) any fact relevant to prove a fact at issue is admissible unless its admissibility is precluded by some specific rule of exclusion and here, testimony as to the general cleanliness of the grocery store is relevant…

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