DANNY DOYLE, APPELLANT,
v.
TENA FAFORD, ET AL., APPELLEES
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Danny Doyle appeals a trial court's order granting a new trial after a jury returned a zero verdict in a negligence case where Mrs. Faford was injured when Doyle's car struck her mobile home. The appellate court affirmed the new trial order but reversed an in limine ruling, holding that Florida's No-Fault Motor Vehicle Law applied because Mrs. Faford, though not an occupant of a motor vehicle, was injured by one as the proximate cause.
The trial court properly ordered a new trial because while a zero verdict may be sustained only where there is conflicting evidence about injury, here the dispute was only about the extent of injuries. Florida's No-Fault Law applies to Mrs. Faford because, although not an occupant of a motor vehicle, she was injured by a motor vehicle that was the proximate cause of her injuries, and security was provided under the statute.
[1] A zero verdict in a negligence case may be sustained only where there is conflicting evidence as to whether the plaintiff was in fact injured.
[2] A trial court does not abuse its discretion in ordering a new trial when there was a dispute only as to the extent of injuries, not whether an injury occurred.
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Join FLexlaw to unlock all legal intelligence“It would ... appear that a zero verdict in Florida may be sustained only where there is conflicting evidence as to whether the plaintiff was in fact injured”
Establishes the legal standard for when zero verdicts are permissible in Florida negligence cases
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Join FLexlaw to unlock all legal intelligenceMrs. Faford was in her mobile home in a trailer park when it was struck by Doyle's automobile as he was speeding through the park, knocking the home o…
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UPCHURCH, Chief Judge.
This is an appeal by Danny Doyle, the defendant below, from an order granting a new trial to the Fafords, the plaintiffs below. Mrs. Faford was in her mobile home when it was struck by Doyle’s automobile as he was speeding through the trailer park. The home was knocked off its blocks by the impact. The jury returned a zero verdict.
It was uncontroverted that Mrs. Faford suffered some injury as a result of Doyle’s negligence. In Westbrook v. All Points, Inc., 384 So. 2d 973 (Fla. 3d DCA 1980), the court noted that the rule in Florida has been concisely stated by the United States Court of Appeals for the Fifth District:
It would ... appear that a zero verdict in Florida may be sustained only where there is conflicting evidence as to whether the plaintiff was in fact injured ...
384 So. 2d at 975, quoting Parker v. Wideman, 380 F. 2d 433, 437 (5th Cir.1967). While a jury may return a zero verdict when it entirely disbelieves that the plaintiff suffered any injury, here there was a dispute only as to the extent of the injuries. In these circumstances, the trial court did not abuse its discretion in ordering a new trial.
However, we agree with Doyle that the Florida Motor Vehicle No-Fault Law applies here.1 Mrs. Faford, while not an occupant of a “motor vehicle” as defined by the no-fault statute,2 was injured by a motor vehicle which proximately caused her injuries. Under the no-fault law, actual physical contact by the automobile with the insured is not required but rather the test is whether the motor vehicle was the proximate cause of the injuries. Lumbermens Mutual Casualty Company v. Castagna, 368 So. 2d 348 (Fla.1979); Royal Indemnity Company v. Government Employees Insurance Company, 307 So. 2d 458 (Fla. 3d DCA 1975). In Royal Indemnity, the plaintiff received PIP benefits for injuries sustained while seated at a bus bench which was struck by a parked car which in turn was hit by a moving car. In the present case, Mrs. Fa-ford’s injuries were proximately caused by the motor vehicle driven by Doyle and hence the no-fault law was applicable.
The cases relied on by the Fafords, Santiagoherrera v. Stout, 470 So. 2d 718 (Fla. 5th DCA 1985), and Scherzer v. Beron, 455 So. 2d 441 (Fla. 5th DCA 1984), are distinguishable. In Scherzer, this court held that the threshold requirements of the no-fault law did not apply to a motorcyclist who filed suit against the defendant motor vehicle operator because a motorcycle is not a “motor vehicle” under the no-fault law. Based on Scherzer, this court in San-tiagoherrera held that the threshold requirements did not have to be met by a plaintiff who sought to recover damages for personal injuries she received when a tractor trailer rear-ended a city bus she was driving as a city bus is excluded from the no-fault law’s definition of “motor vehicle.”
In Scherzer, this court held that the threshold requirements under the no-fault law apply only in a tort action where security has been provided. Section 627.736(1), Florida Statutes (1981), applicable in that case, provided that every insurance policy shall provide personal injury protection benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle. Since the motorcyclist was an occupant of a self-propelled vehicle, security under the no-fault law was not provided to him. Likewise, the city bus driver was also the occupant of a self-propelled vehicle and thus security was not provided to her. In contrast, Mrs. Faford was not an occupant of a self-propelled vehicle when she suffered bodily injury, security was provided for her and the no-fault law applies. The order granting the Fafords’ motion for new trial is affirmed but the order granting their motion in limine is reversed.
SHARP and COWART, JJ., concur. . The Fafords moved for an order in limine to exclude any evidence or argument on threshold requirements or collateral sources on the basis that the Florida No Fault Law did not apply to this case.
. See § 627.732(1), Fla.Stat. (1983).
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Niglio v. Omaha Prop. & Cas. Ins. Co., 679 So. 2d 323 (Fla. 4th DCA 1996)…here someone pushed the plaintiff to the pavement to save him from a car that was out of control as a result of a traffic accident. See Cherwin, 673 So. 2d at 113 (plaintiff injured when he dove out of the way of an errant vehicle); Doyle v. Faford, 517 So. 2d 778, 779 (Fla. 5th DCA 1988)(car struck mobile home containing plaintiff); Royal Indemnity Co. v. Government Employees Ins. Co., 307 So. 2d 458 (Fla. 3d DCA 1975)(motor vehicle struck parked car, causing it to strike pedestrian); contra Smith v. Fortune…
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Vega v. Travelers Indem. Co., 520 So. 2d 73 (Fla. 3d DCA 1988)…So. 2d 271 (Fla.1984). A zero verdict in Florida will be upheld only in the face of conflicting evidence regarding whether the plaintiff was in fact injured. Westbrook v. All Points, Inc., 384 So. 2d 973 (Fla. 3d DCA 1980). See also Doyle v. Faford, 517 So. 2d 778 (Fla. 5th DCA 1988). Although her disability rating varied from physician to physician, the fact of Mrs. Vega’s permanent partial disability was uncontroverted. The jury could not reasonably have returned a zero verdict. See Short v. Ehrler, 510 So.…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Parker v. Wideman, 380 F.2d 433 (5th Cir. 1967)
- Lumbermens Mut. Cas. Co. v. Ercole Castagna, 368 So. 2d 348 (Fla. 1979)
- Westbrook v. ALL Points, 384 So. 2d 973 (Fla. 3d DCA 1980)
- Scherzer v. Beron, 455 So. 2d 441 (Fla. 5th DCA 1984)
- Allstate Ins. Co. v. Detlof Oliver Lofstrum, 307 So. 2d 458 (Fla. 2d DCA 1975)
- Royal Indem. Co. v. Gov't Emps. Ins. Co., 307 So. 2d 458 (Fla. 3d DCA 1975)
- Emelia Santiagoherrera v. Stout, 470 So. 2d 718 (Fla. 5th DCA 1985)